There is a solid argument to be made that Ruth Bader Ginsburg should ignore the fretting liberals urging her to retire from the Supreme Court while President Obama can still replace her with a fellow liberal. Ginsburg, in a new interview with Elle, makes a different kind of argument against her own retirement. This argument is very bad:
If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Republicans] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.
The facts Ginsburg describes are true, but the conclusion she takes away from them is almost certainly wrong. Senate Republicans had previously blocked the Obama administration from appointing anybody at all to certain executive branch offices and federal judgeships. In response, Democrats changed the rules of the Senate to allow the president to fill vacancies for those positions with a majority. They did, as Ginsburg says, leave in place the ability of the minority to filibuster an appointment for the Supreme Court.
The reason Democrats changed the Senate rules is that Republicans had violated an old norm, which held that a president had the right to confirm appointees who agreed broadly with his own philosophy. The opposition could filibuster a judge or a nominee, but this would happen only if the person were deemed unusually radical, incompetent, or corrupt. Instead, Republicans essentially used the filibuster to take away Obama’s informal, unwritten right to nominate a like-minded nominee of some kind. That is why Senate Democrats changed the rules.
It is true that Republicans retain the right to filibuster a Supreme Court nominee. They may use this power to restrain the president from nominating a particularly objectionable figure, as both parties have done in the past. But if they use it as a generalized blockade, stopping Obama from nominating any mainstream Democratic figure, then Senate Democrats would almost surely enact another rule change. If Senate Democrats won’t sit still for Republicans using the filibuster to take away Obama’s right to appoint a federal judge, they surely wouldn’t sit still as Republicans prevent Obama from filling a Supreme Court seat — a far more high-profile fight, which would enrage Democratic donors. It’s also notable that, contrary to predictions made beforehand by traditionalists, the Senate vote to limit the filibuster registered no meaningful backlash. It has not played a role in any of the campaigns being run against vulnerable red state Senate Democrats this fall. There is no reason at all not to do it.
Of course, if Republicans gain control of the Senate this fall, a prospect forecasters rate as slightly better than even, then the power dynamic would change completely. At that point, 40 Republicans could mount a filibuster against a Supreme Court nominee, and Democrats would have no power to stop them.
What’s more, such a scenario is highly likely to occur. The last time Obama nominated a Supreme Court Justice, in 2010, his nominee, Elena Kagan, had secured effusive praise from Republicans in Congress. Nonetheless, only five of them voted to confirm her. Three of those five — Judd Gregg, Olympia Snowe, and Richard Lugar — have since left the Senate, the latter two in the face of right-wing primary challenges. Senate Republicans have almost every incentive to oppose a nominee of any kind. Ginsburg’s decision not to retire means that Democrats quite likely will not have the chance to replace her until they win simultaneous control of the Senate and the White House. Democrats may keep the Senate this fall, or they may win it back in 2016 while also holding the White House. Should they fail, Ginsburg may well find herself replaced by a Republican appointee.
Slate’s Dahlia Lithwick has argued that the risk is worth taking, since Ginsburg’s intellectual firepower surpasses that of any potential replacement. “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,” argues Lithwick.
Actually, no, it’s not tantamount to arguing that at all. The case for her retirement does not presuppose that any Democratic appointee would function equally well. It may well be that a Ginsburg replacement would fail to match her firepower. The argument for her retirement, rather, merely posits that the difference between Ginsburg and another Democrat is far smaller than the difference between another Democratic justice and a Republican one. Of course, overrating the importance of one’s own individual role is exactly the sort of mistake that powerful people tend to make, especially when they advance in years and face the prospect of losing their exciting, influential life for the tedium of retirement.
None of this is to say that Ginsburg has, or had, any obligation to step aside for the good of her ideals. Maybe it’s improper for a Supreme Court Justice to consider politics when deciding the timing of her retirement. Yes, it demonstrably happens, but that doesn’t make it necessarily right; perhaps the risk of losing a perishable chance to replace her seat with a Democratic appointee is simply an acceptable price to pay for the principle of remaining aloof from the political fray. Or maybe Ginsburg and her allies should openly acknowledge that they find her unique role on the Court so valuable as to make it worth the risk of losing her seat to the Republicans.
Instead, Ginsburg is insisting that her decision not to retire runs no such risk. That argument is simply wrong.