Justice Ginsburg: Resign Already!

If the oldest member of the Supreme Court wants to preserve her liberal legacy, she should leave before the Republican Senate takeover.

WASHINGTON, DC - JANUARY 24: U.S. President Barack Obama greets Supreme Court Justice Ruth Bader Ginsburg before his State of the Union address before a joint session of Congress on Capitol Hill January 24, 2012 in Washington, DC. The president made a populist pitch to voters for economic fairness, saying the federal government should do more to balance the benefits of a capitalist society. 
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James Oliphant
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James Oliphant
Dec. 5, 2013, 4 p.m.

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.

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