Should She Stay or Should She Go?

Liberals welcomed Ginsburg’s arrival on the Court but some worry she’s stayed too long.

The legal legacy of Ruth Bader Ginsburg may hinge on two  “20/20” questions only she knows the answer to.   Should she step down from the Supreme Court seat she’s held for 20 years while there’s a Democrat in the White House until 2016 and a Democratically controlled Senate for at least another 20 months?

If Ginsburg cares at all about her legacy, she should step down while there’s still an opportunity to be replaced by a like-minded justice. If she hangs on beyond 2013 the odds keep going up a Republican controlled Senate will turn back any successor they consider too far to the Left.

I’m not the only progressive checking out the calendar and worrying Ginsburg may hang around past President Obama’s term.  In an essay for Salon Jonathan Bernstein laid out the looming dilemma.

Retiring and giving up her final years on the nation’s high court is a lot to ask from Ginsburg, who has been a liberal hero for many years. But just as she was a liberal hero before serving on the Supreme Court, she can be a liberal hero again by leaving it.

This is all pretty straightforward. Ginsburg is 80. Her health is apparently fine now, although she’s a two-time cancer survivor. There’s every possibility she could not only continue in office beyond the Barack Obama presidency but that she could survive even eight years of a Republican in office after that, if that’s what’s in the cards.

And yet: “Every possibility” isn’t good enough. Ginsburg will turn 84 soon after Obama’s successor will be sworn in. Realistically, anyone planning for the future has to assume there’s a 50 percent chance of that successor being a Republican.

Moreover, the simple fact is that most Republicans will support a filibuster against any Supreme Court nominee. Right now, the 55 Democrats (including two independents who caucus with the Democrats) may be enough, combined with a handful of Republicans who are moderate enough or simply oppose knee-jerk filibusters, to get a nominee confirmed.

It’s only going to get harder, however. Next year is an election year, and Republicans fearing a Tea Party challenge will be even more reluctant to let the Kenyan socialist in the White House have a third Supreme Court nominee confirmed. And after that, the odds are pretty good that Democrats will lose ground in the 2014 elections and that they could even lose their majority in the Senate altogether.

And then every month that goes by brings us that much closer to January 2017 and makes it that much easier for Republicans to just implement a confirm-nobody strategy to run out the clock.

Polski: Thurgood Marshall

Marshall was replaced by Clarence Thomas, his polar opposite.

Why should she stay? She’s been there 20 years already. Or do you want her to repeat Thurgood Marshall‘s mistake by hanging on too long and letting a Republican president appoint her replacement?

I’ve never understood why these Justices hang on to the bitter end. They live in Washington and they’re political animals: Ginsburg knows she’s more likely to be replaced by someone closer to her ideologically if Obama has Patrick Leahy running the Judiciary Committee instead of Charles Grassley.

An appointment to the Supreme Court is a lifetime gig, but why wait until you’re almost dead to step aside gracefully.   It’s not as if Ginsburg will out-wait Antonin Scalia or Clarence Thomas to see who steps down first.  Those two bastards would sooner eat their feet than allow Obama to pick their replacements.  Unless they drop dead during oral arguments (and as Thomas rarely speaks or asks any questions, who’s gonna notice if he does?), it’s Ginsburg at the top of the chart of associate justices most likely to call it quits.

It sounds cold to suggest Ginsburg exchange her robes for  slippers and morning television, but if she’s replaced by another Thomas as Marshall was she might have wished she retired a year earlier than later.

I’m a political animal too. Holding on to the bitter end is not a good way for a Supreme Court Justice to go out.   Ginsburg is serving a lifetime appointment and as long as her health holds up and her mental facilities are sharp (as lawyers who  are subject to her questioning during oral argument before the Court can attest to) she shouldn’t be badgered into leaving before she’s ready to go.   The way most of the Justices ignore the media and decline to do interviews it is unlikely Ginsburg pays much attention to the angst of progressives.

Ginsburg and her colleagues on the Court serve lifetime appointments to insulate them from political pressure.  That doesn’t mean when they choose or don’t choose to step aside doesn’t have major political impact.

Whether Ginsburg decides to stay or go, this woman who is small in stature will have a huge impact on the future direction of justice in America.

Ginsburg is a little lady who has a big impact.

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3 thoughts on “Should She Stay or Should She Go?

  1. She is I hope considering stepping down while there is hope her replacement likely balance the court. I think though we must be careful, not expect to much even if she does.

  2. I expect Ginsberg to retire soon, but I bet she wont be the only one to go before Obama’s term is over. Scalia, Breyer and Kennedy are all over 74. Uncle Clarence is 64, Alito is 63. No one knows when they will die. People that age die all the time. I consider it stupid that they aren’t limited by term or age. I also believe that despite West Virginia, Iowa, and Virginia being exposed, the Democrats will retain the Senate and pick up house seats in 2014. The Tea Party wave is all but dried up. It’s something the 24 hour news cycle loves to drum up, but it doesn’t concern me. As you might recall from the last election, I’m an optimist. Fact is, the Republicans are not the party they were a few years ago.

    I wish Harry Reid would be replaced. He is as weak as a kitten. He only wants to be a senator when he’s 80 years old Chuck Schumer is a deal maker, but a stronger guy to be sure.

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