Supreme Court justices are, in one sense, like 3-year-olds. No one tells them what to do. So, when calls come for a justice to retire, as they are beginning to, yet again, for 80-year-old Ruth Bader Ginsburg, don't expect her to listen—or care. But there are very real factors that make this time different, and that make the case for the Court's reigning progressive champion to consider, finally, stepping down. Call it another unforeseen consequence of Obamacare.
The botched rollout of the Affordable Care Act has placed the Democratic Senate majority in jeopardy in a way it hasn't been up till now. A CNN poll released last week showed a massive shift in public attitudes, with respondents favoring the GOP over Democrats on a generic congressional ballot. Just a month earlier, before the frenzy over the debut of the star-crossed enrollment website, Democrats held an 8-point advantage on the generic ballot. That has vaporized.
Admittedly, the GOP still has a thorny path to claim Senate control, essentially needing to gain a net six seats. Most analysts believe they will fall short—and instead likely will edge the chamber closer to a 50-50 split. Even so, the Obamacare furor has made a flip less of a long shot than it was.
And with any shift in the balance of power comes a corresponding shift in White House strategy should Ginsburg choose to step down. The justice has signaled she would like to retire while a Democrat is president. Right now, the party, with the help of two independents, holds 55 Senate seats. After next year, that number could drop to 52 or even lower, perhaps even below a majority. If Ginsburg's hope is to have a true-blue liberal, or a history-making nominee, take her place, she should announce her retirement—and sooner rather than later, to give the president as much time as possible to secure her successor.
Remember, Ginsburg isn't just any justice. She's a trailblazer, the Court's first liberal female jurist, a former ACLU lawyer who has dedicated her career to fighting for feminist and progressive causes. More than most justices, she has built a legacy, through her work before joining the high court and during her 20-year tenure on it.
If the president wants to select a progressive to succeed her, he would be wise to do it when he has maximum leverage in the Senate. The greater the number of Republicans in the chamber, the greater the chance of a filibuster—and that has never been truer than now. While a filibuster has never been used to keep a justice off the Supreme Court, Majority Leader Harry Reid changed the game last month when he invoked the "nuclear option" to eliminate its use for lower-court nominees. His move dramatically raised the possibility the GOP will seek to pick a fight with a high-court choice it deems too left-leaning. "Now would be the time, if that's going to happen," says Christopher Schroeder, a former high-ranking Obama Justice Department official who was involved in selecting judicial nominees.
If the Senate flips and suddenly it's Sen. Chuck Grassley of Iowa or some other Republican running the Judiciary Committee, "it gets harder," says Marge Baker, executive vice president of the liberal advocacy group People for the American Way. Even short of an outright filibuster, a chairman can use a variety of procedural tricks to slow-walk a nomination, especially in a presidential-election year.
Ginsburg has to think about the long game. Her retirement could give the president the opportunity to make history by appointing the first Asian-American justice, someone such as Goodwin Liu, a California Supreme Court justice whom Senate Republicans kept from a federal Appeals Court seat in 2011, or California Attorney General Kamala Harris, who is Asian-American and African-American. Either pick would require Obama to burn more of his rapidly dwindling political capital—and either would likely be a harder sell after 2014. Because of that, in a more closely divided Senate after the midterms, the White House may be tempted to turn to a safer option, such as Merrick Garland, a Washington federal Appeals Court judge who prosecuted terrorism cases for the Justice Department.
And then Ginsburg also has to consider her liberal colleague, Stephen Breyer, 75. Would he, too, seek to retire before a potential GOP presidential victory in 2016? If so, Obama would have more breathing room if Ginsburg quits next year and Breyer follows the year after—before the campaign follies start up in earnest in 2016 and Republicans likely would seek to stonewall any high-court pick.
Supreme Court justices are notoriously immune to outside pressures to quit. William Rehnquist, the former chief justice, frustrated some conservatives by staying on through the 2004 elections while deathly ill, when the threat of John Kerry rather than George W. Bush picking his successor was very real. But a retirement announcement from Ginsburg would not be without precedent. Younger justices have left of their own accord. Sandra Day O'Connor was 75 when she announced her retirement in 2005, and David Souter was 69 when he decided to leave in 2009. Souter's retirement allowed Obama to select a like-minded successor in Sonia Sotomayor.
The Obama White House won't even discuss the possibility of a Ginsburg retirement, and the prospect of being seen as pushing her out makes liberal advocacy groups squeamish. So that may leave it up to the justice to read the midterm tea leaves and act accordingly. Resigning would be a selfless gesture that would only burnish her progressive legacy. Staying could help push the Court further to the right. It's time for her to fly.
This article appears in the December 7, 2013 edition of National Journal Magazine as Exit, Stage Left.