It won't be as cuddly with a Republican in the White House.

Justice Ginsburg's Twisted Logic

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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What happens if conservative Supreme Court justices retire strategically (that is, their departure is timed so that like-minded replacements can be named and confirmed), and liberal justices don't? The answer is obvious, and depressing for liberals. And yet that appears to be the situation now, and there's not much anyone can do about it.

Ruth Bader Ginsburg has been on a sort of publicity blitz before the new session of the Supreme Court begins next week, and she is pushing a particularly weak argument about her possible retirement. Here's what she said in a new interview with The New Republic's Jeffrey Rosen:

JR: Speaking of retirements, there are some who say that you should have stepped down before the midterm elections. How do those suggestions make you feel and what's your response?

RBG: As long as I can do the job full steam, I will stay here. I think I will know when I'm no longer able to think as lucidly, to remember as well, to write as fast. I was number one last term in the speed with which opinions came down. My average from the day of argument to the day the decision was released was sixty days, ahead of the chief by some six days. So I don't think I have reached the point where I can't do the job as well.

I asked some people, particularly the academics who said I should have stepped down last year: "Who do you think the president could nominate and get through the current Senate that you would rather see on the Court than me?" No one has given me an answer to that question.

The question of whom the president could name as her replacement is almost moot by now. But she's completely off on this subject. Liberals (if they have any sense) would much rather see a 55 year-old mainstream liberal on the bench than the 81 year-old Ginsburg, no matter how terrific they think she's been. As many have pointed out (I've been on this for years), no one thinks Ginsburg is washed up; but there's no way of knowing when the next Democrat will be in the White House, and the odds of Ginsburg staying on the court after the 2016 elections for another eight, 12 or 16 years are increasingly small.

The same, by the way, applies to Stephen Breyer, who at 76 is similarly unlikely to survive multiple Republican presidential administrations. Liberals tend to spend less time worrying about Breyer, perhaps because he doesn't publicly expound the same tortured logic as Ginsburg, or because of gender bigotry (he doesn't "look" fragile).

Both of these liberal justices have already missed the boat: If they really cared about advancing their principles, they should have resigned soon after President Barack Obama's re-election, giving the solid Democratic majority in the Senate plenty of time to confirm successors. Contrary to Ginsburg's speculation, there's absolutely no precedent for a Supreme Court nominee with the strong support of 55 majority-party senators being defeated by a filibuster, and (as Jonathan Chait and others have pointed out) any attempt to blockade the Supreme Court by filibuster would have been overturned, just as Democrats overturned blockades of the D.C. Circuit Court and various federal agencies.

It was utterly predictable that Republicans would have more leverage in the 114th Senate during the final two years of Obama's presidency. And so the best time to retire for Ginsburg and Breyer has passed. Still, even if Republicans have a very good election and reach 53 or 54 senators, a full two-year blockade is hardly an inevitable outcome; not all of those senators will be Ted Cruz wannabes. And Ginsburg and Breyer can always condition their retirements on a confirmed replacement -- and withdraw those retirements if needed.

The bottom line: Neither Ginsburg nor Breyer is paying any attention to the strategic calculations, no matter how obvious they are.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor on this story:
Max Berley at mberley@bloomberg.net