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Ruth Bader Ginsburg gets a lot of things right, but this isn’t one of them

Ruth Bader Ginsburg.
Ruth Bader Ginsburg.
Ron Sachs/Consolidated News Pictures/Getty Images

Any discussion of Ruth Bader Ginsburg's recent comments about when she'll retire should begin with a simple observation that we shouldn't be having this conversation at all.

Lifetime appointments to the Supreme Court are insane. There's no reason that decades of jurisprudence should be decided based on when people die or choose to retire. Texas Governor Rick Perry had a good plan to fix this when he ran for president in 2012. This comes from his (now defunct) website, via Rick Hertzberg:

A Constitutional Amendment creating 18-year terms staggered every 2 years, so that each of the nine Justices would be replaced in order of seniority every other year. This would be a prospective proposal, and would be applied to future judges only. Doing this would move the court closer to the people by ensuring that every President would have the opportunity to replace two Justices per term, and that no court could stretch its ideology over multiple generations. Further, this reform would maintain judicial independence, but instill regularity to the nominations process, discourage Justices from choosing a retirement date based on politics, and will stop the ever-increasing tenure of Justices.

But that's not the world we live in. Here, Justices do decide their retirement date based on politics. As Andrew Prokop reports, Justice Ruth Bader Ginsberg explained her strategic thinking to Elle's Jessica Weisberg:

WEISBERG: I'm not sure how to ask this, but a lot of people who admire and respect you wonder if you'll resign while President Obama is in office.

GINSBURG: Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Democrats] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they're misguided.

Here, Ginsburg underestimates the seismic change Democrats made to the filibuster in 2013. What Democrats did was prove the point that the filibuster could be changed with 51 votes. As I wrote at the time, that leaves the filibuster in an unstable equilibrium. It theoretically forces a 60-vote threshold on important legislation and Supreme Court nominees. But that 60-vote threshold can be shattered by 51 senators.

Which is to say, the filibuster now exists solely at the pleasure of the majority. A Supreme Court nominee can only be filibustered so long as 51 senators agree to let them be filibustered. As soon as 51 senators believe that the filibuster is being unreasonably used to block qualified Supreme Court nominees, they can — and likely would — end it there, too. As Jonathan Chait writes:

It is true that Republicans retain the right to filibuster a Supreme Court nominee. They may use this power to restrain the president from nominating a particularly objectionable figure, as both parties have done in the past. But if they use it as a generalized blockade, stopping Obama from nominating any mainstream Democratic figure, then Senate Democrats would almost surely enact another rule change. If Senate Democrats won't sit still for Republicans using the filibuster to take away Obama's right to appoint a federal judge, they surely wouldn't sit still as Republicans prevent Obama from filling a Supreme Court seat — a far more high-profile fight, which would enrage Democratic donors.

Of course, if Republicans take the Senate in November — as now seems likely — then they control both which nominees are passed and how the filibuster is used. So Ginsburg's suggestion that the filibuster makes a Democratic and Republican Senate roughly equivalent is just wrong: in a Democratic Senate, Democrats decide where a Suoreme Court nominee gets filibustered. In a Republican Senate, Republicans do.

There is also the question of what Ginsburg means when she says "someone like me." Reading that, you might think Ginsburg a radical. But she's not. She doesn't have many high-profile breaks with the other liberals currently on the Court. Indeed, Ginsburg was originally a compromise candidate when President Bill Clinton nominated her in 1993 — which is why she cleared the Senate 96-3. As Cass Sunstein, a former clerk for Justice Thurgood Marshall, wrote, "Cautious on the lower courts, Ginsburg and Breyer were prescreened by and fully acceptable to Republicans on the Senate Judiciary Committee." This is particularly true on business issues; Ginsburg's nomination was endorsed by the Chamber of Commerce.

Which is all to say that Ginsburg is a mainstream figure in American legal thought. My guess is that a Ginsburg-like nominee would clear the Senate today. In general, the two sides have been reasonably open to seeing like replaced with like. The real war will happen when Democrats get to replace a conservative justice, or when Republicans get to replace a liberal one. But if I'm wrong and Republicans did try to filibuster a Ginsburg-like replacement for Ginsburg while Democrats controlled the Senate, it would be the filibuster that fell.

So while there may be many reasons Ginsburg should not retire — Dahlia Lithwick makes the case here — the filibuster isn't one of them.

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