A SCOTUS 'fix' in the works?

As the electorate starts to turn against progressives in the wake of the ObamaCare disaster, creative minds on the left are pressuring liberal Justices Ruth Bader Ginsburg and Stephen Breyer to retire before Democrats lose control of the Senate, potentially dooming the possibility of a left wing justice being appointed to replace them. Writing in Bloomberg View, Jonathan Bernstein urges the two to walk the plank for The Greater Good:

Democrats should be rooting for an audience of two to be similarly over-interpreting the results [of the FL 13 special election]: Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg. If the justices previously believed it a safe bet that they would be replaced by mainstream liberal justices when they retire, perhaps now they'll realize their only reasonable course of action is to retire this spring, pending confirmed replacements.

What Ginsburg and Breyer want, of course, is up to them. If their goal is to serve on the court as long as possible, then they should stay. Both, I should note, seem to be at the top of their games. Breyer, 75, and Ginsburg, who will turn 81 this week, might have a dozen or more years to go.

Yet there is simply no way of knowing whether Democrats will maintain a majority in the next Senate, or the one after that. There's also no way of knowing when the next Democratic presidential victory might be.

James Taranto provides a sophisticated analysis of this in the Wall Street Journal (hat tip: Instapundit), noting that seven justices have delayed retiring for apparent political motives, awaiting a friendly president to take office, but that only one has retired early:

The justice who did that (at least according to some accounts) was Earl Warren, who tendered his resignation, effective on confirmation of a successor as chief justice, in June 1968. If that was a strategic move, it backfired. President Johnson nominated Justice Abe Fortas, but he was blocked by a coalition of Republicans and conservative Democrats in the Senate. Warren and Fortas both left the court in 1969, the latter in the face of conflict-of-interest accusations, so President Nixon got to appoint both justices' replacements.

Note that the “nuclear option” allowing Senate confirmation by simple majority, exercised by Harry Reid, does not extend to Supreme Court appointments. Taranto reports:

Our understanding is that that was by order of the abortion lobby, which fears that the simple-majority rule would make it easier to confirm a nominee who would tip the court to reversal of Planned Parenthood v. Casey, the 1992 case that affirmed--or maybe we should say "kept and fixed"--Roe v. Wade.

But the electoral politics of confirming a left wing justice or two, even if the nuclear option is extended to SCOTUS, get tricky:

it's not inconceivable that Senate Majority Leader Harry Reid would have difficulty mustering the 50 votes he'd need to invoke the nuclear option again amid the far more politically charged scenario of a strategically timed Supreme Court nomination--or two--in an election year. Three Democrats defected in November; three more would be sufficient to achieve deterrence.

A stunt like the sudden resignation of a justice or two for political reasons could seriously pressure red state Democrat senators up for re-election, and would also be a challenge for Senator Manchin, who is not facing the voters, but who increasingly seems to be operating as a Republican, as his state has gone from blue to red.

Stay tuned, as the fireworks involved in this scenario could out-shine the Fourth of July displays.

As the electorate starts to turn against progressives in the wake of the ObamaCare disaster, creative minds on the left are pressuring liberal Justices Ruth Bader Ginsburg and Stephen Breyer to retire before Democrats lose control of the Senate, potentially dooming the possibility of a left wing justice being appointed to replace them. Writing in Bloomberg View, Jonathan Bernstein urges the two to walk the plank for The Greater Good:

Democrats should be rooting for an audience of two to be similarly over-interpreting the results [of the FL 13 special election]: Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg. If the justices previously believed it a safe bet that they would be replaced by mainstream liberal justices when they retire, perhaps now they'll realize their only reasonable course of action is to retire this spring, pending confirmed replacements.

What Ginsburg and Breyer want, of course, is up to them. If their goal is to serve on the court as long as possible, then they should stay. Both, I should note, seem to be at the top of their games. Breyer, 75, and Ginsburg, who will turn 81 this week, might have a dozen or more years to go.

Yet there is simply no way of knowing whether Democrats will maintain a majority in the next Senate, or the one after that. There's also no way of knowing when the next Democratic presidential victory might be.

James Taranto provides a sophisticated analysis of this in the Wall Street Journal (hat tip: Instapundit), noting that seven justices have delayed retiring for apparent political motives, awaiting a friendly president to take office, but that only one has retired early:

The justice who did that (at least according to some accounts) was Earl Warren, who tendered his resignation, effective on confirmation of a successor as chief justice, in June 1968. If that was a strategic move, it backfired. President Johnson nominated Justice Abe Fortas, but he was blocked by a coalition of Republicans and conservative Democrats in the Senate. Warren and Fortas both left the court in 1969, the latter in the face of conflict-of-interest accusations, so President Nixon got to appoint both justices' replacements.

Note that the “nuclear option” allowing Senate confirmation by simple majority, exercised by Harry Reid, does not extend to Supreme Court appointments. Taranto reports:

Our understanding is that that was by order of the abortion lobby, which fears that the simple-majority rule would make it easier to confirm a nominee who would tip the court to reversal of Planned Parenthood v. Casey, the 1992 case that affirmed--or maybe we should say "kept and fixed"--Roe v. Wade.

But the electoral politics of confirming a left wing justice or two, even if the nuclear option is extended to SCOTUS, get tricky:

it's not inconceivable that Senate Majority Leader Harry Reid would have difficulty mustering the 50 votes he'd need to invoke the nuclear option again amid the far more politically charged scenario of a strategically timed Supreme Court nomination--or two--in an election year. Three Democrats defected in November; three more would be sufficient to achieve deterrence.

A stunt like the sudden resignation of a justice or two for political reasons could seriously pressure red state Democrat senators up for re-election, and would also be a challenge for Senator Manchin, who is not facing the voters, but who increasingly seems to be operating as a Republican, as his state has gone from blue to red.

Stay tuned, as the fireworks involved in this scenario could out-shine the Fourth of July displays.

RECENT VIDEOS