Saturday, July 02, 2011


This AP story has some right-wingers' knickers in a twist:

Democrats and liberals have a nightmare vision of the Supreme Court's future: President Barack Obama is defeated for re-election next year and Justice Ruth Bader Ginsburg, at 78 the oldest justice, soon finds her health will not allow her to continue on the bench.

The new Republican president appoints Ginsburg's successor, cementing conservative domination of the court, and soon the justices roll back decisions in favor of abortion rights and affirmative action.

But Ginsburg could retire now and allow Obama to name a like-minded successor whose confirmation would be in the hands of a Democratic-controlled Senate. "She has in her power the ability to prevent a real shift in the balance of power on the court," said Erwin Chemerinsky, dean of the University of California at Irvine law school. "On the other hand, there's the personal. How do you decide to leave the United States Supreme Court?"

For now, Ginsburg's answer is, you don't.

There are few more indelicate questions to put to a Supreme Court justice, but Ginsburg has said gracefully, and with apparent good humor, that the president should not expect a retirement letter before 2015.

She will turn 82 that year, the same age Justice Louis Brandeis was when he left the court in 1939. Ginsburg, who is Jewish, has said she wants to emulate the court's first Jewish justice....

Omigod! Publicly urging Ginsburg to step down in the interest of ideas she believes in! Never mind the fact that she's hardly a wilting flower, and is clearly not being moved by any suggestions of an early retirement -- concern troll Don Surber writes a post with the harrumphy title "Today in liberal morality," while Ann Althouse is suddenly Ginsberg's best friend: "Wow! How much of this kind of moral pressure is being applied to the venerable Justice?"

Of course, it doesn't matter: There's no reason for Ginsburg to step down because Barack Obama isn't going to get another justice approved by the Senate, even if two justices resign, as has been suggested:

But some on the left say that the focus on the personal is misplaced. Ginsburg needs to put self-interest aside and act for the good of the issues they believe in, Harvard law professor Randall Kennedy wrote recently. Kennedy said 72-year-old Justice Stephen Breyer should leave, too.

I know, I know: Democrats have a Senate majority. There's a widespread belief that the filibuster-everything approach of modern Republicans has its limits, and that filibustering a Supreme Court sppointment is something that just isn't done, even now.

Really? If you believe that, I think you're naive. Remember, not long ago it was believed that Republicans would never play politics with the debt ceiling. Does anyone still think that?

I'm not sure Obama will ever get another justice onto the High Court, even if he's president for five more years -- that is, unless he appoints a justice a Republican president would appoint. Which, in the end, he probably will.

Which brings up a thought:

Sandra Day O'Connor announced her retirement in 2005 in part so she could take care of her ailing husband, John. Two months later, Chief Justice William Rehnquist died in office.

Meanwhile, John O'Connor's health declined much faster than his wife anticipated and he soon was living in a nursing home in Arizona. Would she have quit the court had she known what awaited?

In retirement, O'Connor has maintained a busy schedule, hearing cases on federal appeals courts as well as advocating for Alzheimer's funding, improved civics education and merit selection, rather than partisan election, of state judges.

O'Connor, now 81, also has said she that she regrets that some of her decisions have been "dismantled" by the Supreme Court. Justice Samuel Alito, who took her seat in 2006, has voted differently from O'Connor in key cases involving abortion rights, campaign finance and the use of race in governmental policies.

If President Obama gets another Court pick and (as I strongly suspect) his pick is blocked, and (as I also strongly suspect) the thugs in the GOP make clear that literally no liberal or moderate justice will be able to avoid a filibuster (just as no tax increase is acceptable now), then maybe at some point Obama should just try reappointing O'Connor. Would the Republicans filibuster her? I don't think they could. And sh might be the best we could do. I can't imagine that anyone I'd really want to see on the court wouldn't be filibustered.

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