Counting on the next Democratic president to replace them. Photographer: Brendan Smialowski/AFP/Getty Images

Ginsburg and Breyer Should Plan Their Exit Strategy

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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No, no, no:

Ginsburg is right to ignore the chorus of liberals asking that she retire and allow President Obama to replace her, in case Democrats lose the presidency in 2016...
The only consideration should be whether Ginsburg is still up for the job — and there could be little question about that Monday, as the court heard a pair of minor cases...

I suppose if Dana Milbank is making this mistake, it's worth explaining the argument again: I don't know of anyone who thinks that Ruth Bader Ginsburg and Stephen Breyer are no longer able to serve on the Supreme Court. So attempts to prove Ginsburg is still at the top of her game are irrelevant.

The entire argument for their stepping down is that it would be the best strategy to ensure support for the interpretations and policies Ginsburg and Breyer have fought for. The downside risk involved in waiting is huge.

And, no, Ginsburg's stated opinion that Barack Obama will be followed by another Democrat doesn't bolster the case that she should stay. Rather, it is all the more reason to make the case for her departure, because the best evidence we have is that 2016 is a toss-up. As is 2020. And 2024. And that's just the presidency. This Senate would confirm an Obama nominee, but that certainty could disappear after the November elections. Put it together, and there's a very real possibility that Ginsburg would be replaced by someone who could undermine her life's work if she retires any time after this spring. The same goes for Breyer.

The justices have a lifetime appointment, and can do as they wish. However, it's completely reasonable for them to take likely successors into account when making their plans, and if that matters to them, then their best course is an easy call.

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