Justice Ginsburg Won’t Resign Because Obama Couldn’t Appoint A Good Replacement

Once again, Justice Ginsburg is telling people she has no plans to resign, but her explanation is a bit different this time.

ruth-bader-ginsburg-civvies

Justice Ruth Bader Ginsburg must feel at times as she has a big target on her back, and the arrows being sent her way are coming from people on her side of the political aisle. Specifically, those arrows take the form of calls on people from the left side of the spectrum calling on Ginsburg to resign from office so that President Obama could appoint her successor. Even though she had said after Elena Kagan’s nomination that she had no plans to resign, there were several calls for her to step aside prior to the 2012 election so that the President could appoint her successor before then, an idea that the Justice quickly shot down. The talk resumed after the President won re-election and, each time, Ginsburg made clear that she has no plans to step aside as long as she’s able to continue doing her job. The calls have continued this year, including one from a Law School Dean that was published on her birthday and another set of calls by others on the left for Ginsburg to step aside before the midterm elections.  Throughout all of these calls, which have bordered on the disrespectful on more than one occasion, Ginsburg has generally responded with curt denials of any intention to resign any time soon, but in a new interview she goes into far more detail about why she doesn’t believe that it is the right time for her to step aside:

Supreme Court Justice Ruth Bader Ginsburg is pushing back against suggestions that she should soon retire, saying President Barack Obama would be unable to get a justice like her through the Senate.

“Who do you think President Obama could appoint at this very day, given the boundaries that we have?” the 81-year-old justice told Elle Magazine in an interview excerpt released Tuesday. The wide-ranging interview portrays Ginsburg — seen as a member of the court’s liberal wing — as attuned to the dynamics in Congress and some of the greater political and social discussions in the U.S.

In the interview, she suggested that Senate Republicans would likely block any potential nominee like her.

“If I resign any time this year, he could not successfully appoint anyone I would like to see in the court,” the oldest member of the high court said. “[A]nybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided,” later adding that she can “do the job full steam.”

In some respects, Ginsburg’s comments mirror those that were made by Chief Justice Roberts last week when he said that neither she nor Justice Antonin Scalia could get confirmed in the current political climate. Just as that is most likely true, it is also true that it would be quite difficult for the President to get a Ginsburg-like nominee through the Senate before he leaves office. Even if Democrats retain control of the Senate, Republicans would still be able to utilize the filibuster and other procedural maneuvers to block the nomination of a controversial nominee long enough for it to become the kind of political problem that forces a President to withdraw a nominee. It’s true, as Noah Rothman and others note, that Senate Democrats faced with such a situation could attempt to amend Senate rules once again to eliminate the filibuster for Supreme Court nominations just as they did for other Judicial appointments, although there’s at least some indication that Harry Reid might have a hard time getting that through his own caucus. Incidentally, all of this would have been true if Ginsburg had resigned before the 2012, or last year, or at the end of the Court’s term this year. If Republicans win the Senate in November, of course, then the prospect of the President being able to replace Ginsburg with anyone like her will be completely non-existent.

To the extent that Ginsburg cares about who replaces here then, her assessment here is largely correct. However, it’s likely that these same conditions will exist after President Obama leaves office. Even if we end up with a Democratic President and Senate in 2017, for example, Republicans are still likely to be just as aggressive in opposing a nominee like Ginsburg as they would be now. Additionally, if the GOP does take the Senate this year they could hold onto it in the 2016 elections even if a Democrat is elected President, which would hamstring a future Democratic President in much the same way that it would hamstring Obama. More importantly, of course, if a Republican is elected President in 2016 then Ginsburg’s calculus will have proven incorrect. She has said in the past that she believes that a Democrat will be elected President in 2016, and she’s probably right about that. There are no certainties in politics, though, and Ginsburg may find herself in much the same position that other liberal Justices have when they ended up stepping aside while a Republican was in the White House, the most notable of those in recent memory of course being Thurgood Marshall.

In the end, Justice Ginsburg will retire when she is ready to or when she feels that she can no longer do her job, as will the other Justices who are approaching the age where we’d typically see judicial retirements. Until that day comes, both she and her fellow Justices deserve some level of respect that includes not being hectored on a regular basis to leave the job to which they were appointed for life. Ginsburg has said she’s not retiring any time soon and, barring health issues that will hopefully not arise, she’s going to live up to that promise, especially since she’s already hired law clerks not only for the Court’s 2014 term, but also for its 2015 term. Perhaps its time that her fellow Democrats stopped bugging her about it.

FILED UNDER: Barack Obama, Campaign 2014, Campaign 2016, Congress, Law and the Courts, Politicians, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. John D'Geek says:

    Alright, this is bugging me: why do you use the words “resign” and “retire” interchangeably? She hasn’t done anything wrong (unless you count disagreeing with me) — why would anyone be pressuring her to “resign”?

  2. al-Ameda says:

    Seems simple: She’s betting that Hillary Clinton will be elected in 2016.
    Perhaps if the Senate stays Democratic? … Nope, she’s here to stay.

  3. stonetools says:

    Looks like The Notorious RBG knows her politics. As a liberal, I’m calling on YHWH, the FSM, the Seven African Powers, Lord Krishna, and anyone else who might be listening to keep her alive and in good health till the next Democratic President and filibuster proof Democratic Senate majority.

  4. C. Clavin says:

    Her dissent in Hobby Lobby was brilliant…and it’s already been borne out as accurate.

    “Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.”

    “Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude.”

    However…the logic here…not so much.

  5. gVOR08 says:

    @John D’Geek: My dictionary defines “resign” as quitting a position, no implication of fault or pressure. However, given it’s common usage in political context, I can see where people might assume fault.

  6. MBunge says:

    I don’t think Supreme Court Justices should be scheduling their retirements via political calendars but, since that seems to be what RBG is doing, I have to say she’s a massive fool.

    There is ZERO reason to think Hilary or any near-future Democratic President is going to nominate anyone for the Supreme Court who is substantially more liberal than anyone Obama would pick.

    There is, however, a decent chance that in the foreseeable future the GOP will take control of the Senate or hold onto enough seats that they’ll only need a handful of Democratic defectors to shoot down any nominee for the Court substantially more liberal than Obama would pick.

    RBG is 81. Does she think she’s going to last another 20 years, ’cause it’s probably going to take at least that length of time to change the above two realities.

    Mike

  7. gVOR08 says:

    @stonetools: For whatever they’re worth, add my ignostic prayers to yours.

  8. gVOR08 says:

    @MBunge: She may feel there is a realistic chance both of her making it three more years and of 60 Dems after ’16 when the Senate calendar favors Dems heavily. If she’s wrong about either, there are very good odds the situation will be no worse than now, a Dem prez and weak Dem control of the Senate. Looks to me like she’s calculating odds pretty nicely.

    And yes, I would greatly prefer that our circumstances didn’t force justices to schedule retirement around the election calendar. But they do.
    _________
    I was going to crack wise that Hillary is available now and won’t be after ’16. But even if she secretly doesn’t want to run, why would she accept a SCOTUS nomination and subject herself to months of the Senate GOPs and Bennnghazzzzi!!!(tm)?

  9. pylon says:

    If she retires now, she runs the risk of being accused of doing so solely to let Obama pick a replacement. If she retires later due to health concerns before his term his up – hey he had no choice, right?

    And like other have said, the next pick is likely HRC’s anyway.And with a better Senate prospect.

  10. Rob Prather says:

    I would love to see the idea of 18-year staggered terms for the justices.

  11. Paul L. says:

    Out of Context! excuse time.

    Ruth Bader Ginsburg, having decided for some inexplicable reason to do a long interview with a fashion magazine (maybe it is her celebrated collection of lace collars), reaffirmed the most important things we know about her: her partisanship, her elevation of politics over law, and her desire to see as many poor children killed as is feasibly possible.

    Yes, I think so…. It makes no sense as a national policy to promote birth only among poor people.

  12. Eric Florack says:

    @John D’Geek: because there are two ways out of the USSC… resignation, or a dirt nap.

    Meanwhile I should say that given what we have seen of the woman so far, she clearly is working under a different definition of “good” than most folks.

  13. MBunge says:

    @gVOR08: “She may feel there is a realistic chance both of her making it three more years and of 60 Dems after ’16 when the Senate calendar favors Dems heavily. If she’s wrong about either, there are very good odds the situation will be no worse than now, a Dem prez and weak Dem control of the Senate. Looks to me like she’s calculating odds pretty nicely.”

    She’d go broke in 10 seconds calculating like that in Vegas.

    1. There’s a good chance Dems will lose the Senate this year. So she’s an 81 year old betting she’ll make it at least 2 more years.

    2. If Hilary or a Dem wins the Presidency in 2016, what are the chances they’ll nominate anyone substantially more liberal than Obama would right now? Fairly slim, I’d say.

    3. Even if Dems win 60 seats in the Senate in 2016, what are they chances NONE of them will break ranks if a very liberal nominee is put up for the Court? Even slimmer.

    4. What are the odds a Republican wins the White House or the GOP take and/or keep control of the Senate or at least have 40+ votes between 2014 to 2020? Maybe not great but a darn sight better than the first three.

    Mike

  14. C. Clavin says:

    @Eric Florack:
    No…just the folks who tell you what to think and when to think it.
    I noticed you disappeared when called out for lying about Bush and the Status of Forces Agreement.
    Not a lot of spine, eh?

  15. humanoid.panda says:

    I tend to think that she is just pissed off at people who want her to retire and is investing ad-hoc reasons not to retire. In a way, I understand that: who wants are reminder that half the political nation expects and the other dreads you dying when you are a cancer survivor in your late 70s? However, if she seriously means what she says she:

    a) is being incredibly insulting towards Kagan and Sotomayor, both excellent liberal judges.
    b) knows nothing and understands less about US politics.

  16. humanoid.panda says:

    @Paul L.: Partisanship bad! Balls and strikes good! Overturning years of precedent to serve the narrow interests of your party while talking about balls and strikes and broccoli mandates even better!

  17. humanoid.panda says:

    @MBunge: I’d add no. 5. What are the odds of any Democratic nominee, even one less liberal in theory than RBG, voting any differently than her on important issues? Kagan, in theory, is less liberal than RBG, but their voting record is more or less identical.

  18. humanoid.panda says:

    @C. Clavin: Hell, he still hasn’t responded to my refutation of his “invisible conservative majority” argument few months ago and that’s just the basis for his entire theory about the nature of American politics….

  19. pylon says:

    @MBunge: It really makes little difference if she retires now when the Dems have a majority, but not a supermajority, in the Senate, or when they have no majority – the Repubs won’t let any Obama nom through.

  20. C. Clavin says:

    @humanoid.panda:
    Typical cowardly keyboard commando.

  21. gVOR08 says:

    @MBunge:
    1. If she doesn’t make it to ’17, the situation is the same as if she resigned now.
    2. If Hillary has 60+ Dems, she can nominate someone more liberal. If not, the situation’s the same as now and she has the same constraints as Obama now.
    3. 60 even, Reid and Hillary will have to do some serious arm twisting and bribery to keep everyone on board. Each Dem over 60 makes it easier. If they fail to hold 60, the situation’s the same as now.
    4a. Current best estimate is that odds of a GOP prez in ’16 are slim. That’s the risk she’s taking.
    4b. If the GOPs have 40+ votes in ’15 and ’16, we’re no worse off than now.
    4c. If we have Hillary and 40+ GOPs after ’16 we’re no worse off than now.
    5. @humanoid.panda: If she makes it to ’17 there’s a chance of 60+ Dems and a more liberal nominee. If she resigns now, maybe Obama can get a Stomayor or Kagan, maybe not.

    She stays, we have the certainty of Ginsburg for some period of time. There’s also a fair chance of a better situation in ’17 against a very slim chance of a worse situation.

    She resign now, there’s no chance of better outcome and a good chance of worse. What @pylon: said.

    I can’t say whether she’s thought this all out, but I don’t see a scenario in which her resigning now helps the Dems.

    If she feels she’s done her bit and wants some well deserved leisure years, it’s her call. If she feels the country is better served by her staying and she wishes to, it’s her call. And I wish her the best either way.

  22. humanoid.panda says:

    @gVOR08: What you are ignoring is the very likely proposition that had she resigned, say, six months ago, AND the GOP would have began a siege of Obama’s nominations, it is quite likely that the Senate Dems would have blown up the filibuster.This is what happened with the DC Circuit Court after all.

    Also, keep in mind that neither Sotomayor nor Kagan were filibustered and that’s for a simple reason: on this side of Ted Cruz, the GOP senators know that no political party would tolerate nullification of President’s power to appoint Supreme Justices.

  23. humanoid.panda says:

    @humanoid.panda: A more interesting quesiton in a way is what happens if the Dems maintain their senate majority, and Scalia has to leave the bench on health grounds. The GOP pretty much has to blockade all Obama nominations if that happens or be eaten alive by their primary voters, so the path to constitutional crisis is wide open…

  24. Moosebreath says:

    @gVOR08:

    “If she doesn’t make it to ’17, the situation is the same as if she resigned now.”

    That assumes that it makes no difference if the Republicans hold 51 Senate seats (as there is a significant chance of for 2015 and 2016). I am not so sure about that.

  25. C. Clavin says:

    @humanoid.panda:
    Under Scalia’s contract with the Koch brothers he is not allowed to get sick or to die.

  26. Tyrell says:

    Oh, I thought the Supreme Court and their judges are not supposed to be involved in politics. Judge Ginsburg provides another excellent argument for the election of judges.

  27. jd says:

    Marriage equality is coming up. Don’t drop the ball now, baby!

  28. Guarneri says:

    I get a good chuckle at the oft proffered notion that someone has dashed off out of fear of debating this erudite crowd ( snicker ). You take yourselves far too seriously, and boredom would be a better explanation.

  29. edmondo says:

    Even if Dems win 60 seats in the Senate in 2016,

    If Hillary has 60+ Dems

    Has the entire board been taken over by stonetools’ acolytes? the best case scenario for 2016 is a Dem pick up of 6 or 7. Where the hell are the other 3 or 4 senators coming from?

  30. gVOR08 says:

    @edmondo: It’s not a prediction, it’s a scenario, one of several possible scenarios. Not probable, but possible.

  31. humanoid.panda says:

    @Tyrell: If that were true, this would be the first ever good argument for electing judges.

    What she provides is good argument for term limits…

  32. MBunge says:

    @gVOR08: She resign now, there’s no chance of better outcome and a good chance of worse.

    She’s already on the losing side of these decisions. Replacing her with anyone isn’t going to change that. Replacing her now, however, with someone a good bit younger than 81 can lock in that seat for the next 20 or 30 years.

    This is the deal.

    We know what we can replace RBG with right now.

    We don’t know if that option is going to get any better in the near future.

    We do know it could get a lot worse.

    RBG is falling into that classic trap of politics and letting the perfect be the enemy of the good.

    Mike

  33. Eric Florack says:

    @humanoid.panda: Really?
    Explain the treatment by the Dems on Clarence Thomas. what was that, save an attempt at nullifying a presidential choice?

  34. Eric Florack says:

    @C. Clavin: No. As someone else noted…. boredom.
    Trust me… you’re just not that important.

  35. Grewgills says:

    @Eric Florack:
    Funny how you always seem to get bored when your arguments are shown to be complete bs.

  36. Just 'nutha' ig'rant cracker says:

    @Tyrell:

    Oh, I thought the Supreme Court and their judges are not supposed to be involved in politics.

    Denial much? Or are you just pretending to be this much of a naif?

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  38. Pinky says:

    How precious must she be in her own mind if the entire system has to be wiped clean in order to find someone good enough to replace her?

  39. Eric Florack says:

    @Grewgills: actually, thats the standard line when liberals cant make their case… that the conservative is a liar.
    as I said. boring.

  40. Grewgills says:

    @Eric Florack:
    Your pattern has been:
    1) Make a series of unsupported assertions, for example voter participation has been decreasing since the 80s when it enjoyed its height with the election of Reagan.
    2) Argument ensues.
    3) Someone brings out data with links to multiple sources that shows your assertions to be factually incorrect. The participation of eligible voters in 1980 and 1984 was slightly lower than the norm for the past 100 years and the participation of eligible voters in 2008 and 2012 was actually higher.
    4) You make a feeble attempt to say those are the wrong numbers.
    5) It is shown that those are in fact the appropriate numbers and there are multiple links to non-partisan sources that confirm them.
    6) You get ”bored” and stop commenting.
    7) You show up in another thread days or weeks later repeating the same unsupported assertions. Lather, rinse, repeat.