Last November, when the Senate Democrats finally bit the bullet and eliminated the filibuster for most judicial and executive branch nominees, Megan McArdle wrote a post arguing that pulling the trigger on the nuclear option showed that Democrats were concerned that they would not retain their Senate majority after 2014 (emphasis added):
Yes, obviously the Democrats are mad about Republican obstructionism, but they were mad three weeks ago, and they didn’t abolish the filibuster then.
One way to interpret this is that they are confident that they will retain their majority in 2014, and so they have no immediate need to worry about minority rights. But it would be insane for Reid to have grown more confident in the last six weeks. No, I think that this shows the opposite: They think it’s very likely that they will lose their Senate majority in 2014. They are essentially writing off the last two years of Obama’s presidency, which means getting as much done as possible right now. They are going to spend the next year packing as many liberal justices and appointees onto the courts and various bureaucracies as they can, knowing that much of this legacy will live on beyond Obama.
I thought about that post when I read, and read about, Erwin Chemerinsky’s op-ed last week in the Los Angeles Times making the case that Justice Ruth Bader Ginsburg should retire this summer:
There likely will be many calls, publicly and privately, for Justice Ginsburg to resign before President Obama leaves the White House to prevent the risk of a Republican being able to appoint her successor. But simply leaving before the next election isn’t enough. If Ginsburg waits until 2016 to announce her retirement, there is a real chance that Republicans would delay the confirmation process to block an outgoing president from being able to fill a vacancy on the Supreme Court. In fact, the process for confirming nominees for judicial vacancies usually largely shuts down the summer before a presidential election.
Moreover, there is a distinct possibility that Democrats will not keep the Senate in the November 2014 elections. The current Senate has 53 Democrats, two independents who vote with the Democrats and 45 Republicans. But in the November 2014 elections, Republicans have a far greater likelihood of gaining seats in the Senate than the Democrats. One recent study identified nine seats held by Democrats that could be won by Republicans, but only two seats occupied by Republicans that might be taken by Democrats.
So, calls for Ginsburg to retire soon are evidence of the degree to which liberals and Democrats are afraid that the Democrats will lose control of the Senate in the 2014 mid-terms. I trust that this is not too radical a proposition.
There were two noteworthy responses last week to Dean Chemerinsky’s op-ed.
First, Garrett Epps in The Atlantic argued that it is counterproductive to tell Justice Ginsburg to retire: she enjoys the work, has an independent streak, she doesn’t feel beholden to President Obama or the Democratic Party, etc.
Second, Dahlia Lithwick in Slate echoed Prof. Epps’s assessment and went on to wax a bit about the special, irreplaceable qualities of Justice Ginsburg:
If anything, Ginsburg has been stronger in recent years than ever and has been a crisper, more urgent voice for women’s rights, minority rights, affirmative action, and the dignity of those who often go unseen at the high court than ever before. She has gone from rarely reading her dissents from the bench to doing so with great frequency, calling out the majority for what she sees as grave injustices and proving that her voice is both fiery and indispensible. Telling her that her work is awesome, but it’s time to move on is tantamount to saying that a liberal is a liberal and that Ginsburg brings nothing to the table that another Obama appointee will not replicate. That analysis suffers from exactly the same realpolitik flaw Ginsburg’s critics ascribe to her: that counting to four, or five, is more important that the justice herself. Ginsburg, like Antonin Scalia, is writing those dissents for law students, for the case books, and for Congress. Not all justices are created equal in that regard.
Lithwick also notes the practical difficulties involved in “replacing” Ginsburg with a comparably progressive justice: “the fact that President Obama can’t get a civil rights lawyer confirmed to a civil rights position in this political climate or seat a surgeon general who believes gun deaths are connected to public health tells me that the argument that he could easily confirm a Ginsburg 2.0 is naive as well. Ginsburg herself often says that the chances of another Ginsburg being confirmed to the court today are negligible.”
I suppose that none of the points that Epps or Lithwick raise really speak to or diminish the fears of progressives that Ginsburg might wait too long to retire and then be replaced by a much more conservative justice, who would then side with the Court’s four current more-or-less-consistent conservatives in the 5-4 cases. This is the progressive nightmare: that a Republican president and a Republican-controlled Senate fill Ginsburg’s seat with another Samuel Alito.
Regarding how effective Chemerinsky’s added voice is likely to be, Prof. Althouse writes thusly:
Chemerinsky frets about the Democrats’ losing the Senate this fall, and Ginsburg’s retiring in June, he assumes, will give Obama the power to pick “virtually anyone he wants” for the Court. Filibuster is unlikely, Chemerinsky informs us, and anyway, the Democrats have the power to eliminate the filibuster for Supreme Court Justices. They’ve already eliminated the filibuster for the rest of the federal judiciary.
Chemerinsky doesn’t touch upon the political repercussions of such a drastic and obvious move, but he can’t be so shortsighted and judge-focused that he doesn’t notice. Is he so pessimistic about the Democrats in the fall elections that he thinks they might as well throw their power around this summer while they still have it?
Also at Slate, David Weigel looks at the recent failure to confirm Vivek Murthy as Surgeon General and offers some commentary on one of the factors that Lithwick mentions: the seeming impossibility of confirming a new justice with a progressive track record comparable to that of Justice Ginsburg. Weigel:
Here’s the irony: By ending the filibuster, and by allowing the 55-seat Democratic caucus to confirm nominees with no Republican buy-in, the majority has complicated life for its red-state members. They can no longer expect a Republican filibuster to kill a “controversial” nomination. They have to kill the nominations themselves.
Chemerinsky and similar observers are looking ahead to 2015-16 and dreading the impossibility of confirming progressive nominees after the mid-terms. But vulnerable Senate Democrats facing elections this year — like Mary Landrieu of Louisiana, Kay Hagan of North Carolina, and John Walsh of Montana — are looking out for their own electoral prospects and are presumably nervous about giving their opponents ammunition by voting to confirm nominees who are too progressive or too “controversial.”
Chemerinsky wants to strike before Democrats lose control of the Senate. He is looking to after the mid-term elections. The Senate Democrats on the bubble are afraid to strike now because they are looking to November 2014.
Which means, in terms of confirming a progressive successor for Ginsburg, it may already be too late.
Image Credit: Justices Sotomayor, Ginsburg, and Kagan, October 2010. Photo by Steve Petteway, photographer for the Supreme Court. Source: Wikimedia Commons.