Ruth Bader Ginsburg’s Retirement and the U.S. Senate

Over the weekend, I had a Salon column arguing that Ruth Bader Ginsburg should retire at the end of the current Supreme Court term (with retirement taking effect upon confirmation of her replacement). Today, I did a follow-up looking at where the votes would fall in the Senate.

A few more thoughts…first: I don’t understand the objections that this line of thought is insulting to Ginsburg, or what I think is a related argument that SCOTUS should be above politics. I think that’s a real misunderstanding of the Court. It’s true that Supreme Court justices don’t, and shouldn’t, simply vote the way that Members of Congress vote on issues. But yes, absolutely, the Court is and is meant to be “political” and a part of the US democracy. And during an era in which the polity is highly partisan and polarized, it’s no surprise that the Court is, too. Not only no surprise, but it’s basically what we should want. The idea that the Court should be the same regardless of what voters want is anti-democratic — and, given the Constitution, unrealistic.

When it comes to the Senate…there’s some possibility that there could be some real difficult calls for individual Senators. One thing I didn’t talk about is the Democrats; it’s likely, but not certain, that they would stay united — but that means that any individual Democrat who wanted to sink a nominee, presumably before she was named, could do so. It’s probably also the case that several Senate Democrats would probably prefer that they can duck any SCOTUS fight, even if the party as a whole might welcome it.

On the Republican side, I can imagine a couple of things. To the extent that Barack Obama is more popular than Congressional Republicans, they might collectively want to make the whole thing go away quickly — especially since the potential for Akin moment would be thought to be fairly high. But there aren’t too many Republicans who would want to be the ones who case the winning vote for a Ginsburg replacement; even in Maine, that’s something that could potentially draw a tough primary opponent.

Granted, all of this is mostly speculative at this point. But if it does happen, it’s going to be an enormous story, and deservedly so. Might as well start thinking about it now.

[Originally posted at A plain blog about politics]

Jonathan Bernstein

Jonathan Bernstein is a political scientist who writes about American politics, especially the presidency, Congress, parties, and elections.