Did Justice Ruth Bader Ginsburg totally screw liberals on the Supreme Court? Yeah, she might have, or at the very least placed the liberal wing in a very shaky position. Conservatives are in a solid position to direct the course of the court for the next generation with a solid 5-4 majority. Given Ginsburg’s age, 85, and the notion that Trump winning a second term is not insane, it’s possible that another vacancy could open up. The 60-vote threshold on SCOTUS nominees is no more.
Now, Sens. Murkowski (R-AK) and Collins (R-ME) could give their own party heartburn. Barring a defection from at least one red state Democrat, if both defect, the game is up. Yet, the odds still favor confirmation for the still-to-be-named nominee. The strategic failure of Ginsburg to not retire under Obama was touched upon by law professor Jonathan Turley last year (via The Hill):
Unpopular opinion 1: I get liberal prayers for Ruth Bader Ginsburg’s health, but, guys, she really can’t help you as part of a 4-5 minority.
— Maya Sen (@maya_sen) June 28, 2018
Unpopular opinion 2: Her choice not to strategically retire under Obama made her a cool & hip lady but was actually very bad for liberals.
At 84, “running out of gas” was obviously not a reference to the danger of creeping fatigue. For Ginsburg, of course, it was always a difficult decision. After all, she remains intellectually active and fully engaged on the Court. Her opinions continue to be powerful and probing treatments of the law. The precedent at risk is in no small degree precedent of her making. Yet, many justices time their retirements with an eye to who would appoint their replacements. Some have admitted that they try to engineer an appointment by one party or the other to preserve the balance of the Court.
Had Ginsburg retired early in the second Obama term, it is likely that her seat would have been filled even by a Republican-controlled Senate. Any resistance would likely have been further reduced with the second vacancy left by the death of Antonin Scalia. While Scalia’s seat may have stayed open, it is likely that Ginsburg’s would have been filled by an Obama nominee.
Now Ginsburg’s gamble on Hillary Clinton being elected could have sweeping impact on precedent that she played a major role in creating. With the elimination of the filibuster, the next nominee is hardly likely to be nuanced. Without the filibuster, Republicans have no excuse to compromise on a moderate. There is nothing standing in the way to appointing someone who is openly opposed to cases like Roe v. Wade. There is no plausible deniability based on the need to get to 60. In other words, the market has changed and the stock went bust.
Had Ginsburg left the liberal wing could have at least maintained its position with a vibrant and much younger centrist who could have avoided the lurch to the right under President Trump. That being said, maybe a gift basket is in order. Looking at the 2020 Democratic field, it’s full of candidates who resonate with the liberal northeast, but not much elsewhere. It’s very rigid concerning geographical appeal. With a booming economy, record low unemployment, the highest marks in consumer and small business confidence in years, and three million jobs created—Trump has a solid record to run on, especially with conservatives, who not only got tax reform and cuts to regulations from his White House, but also two Supreme Court justices. It’s very likely—at this point—that Trump wins a second term and could add another justice to the court with Ginsburg’s departure. Talk about a liberal meltdown: that’s a 6-3 conservative majority. If you want to see a thermonuclear explosion of outrage from the Left, when RBG leaves SCOTUS, Trump should nominate Amy Coney Barrett to fill the vacancy.
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