EXIT STRATEGY

While we're on the Supreme Court and the dead pool, it wouldn't be the worst time to start thinking about a replacement strategy for Ruth Bader Ginsburg.

I know. I know. She's great. People love her. The internet loves her. But despite some evidence that she may be the Highlander, she isn't immortal. She's an 83 year old woman who has been diagnosed with and treated for colon and pancreatic cancers. Frankly it is nothing short of a miracle that she is alive. She must have a combination of unbelievable luck, freakish physical constitution, and the best medical care money can buy just to be alive and breathing right now. The five-year survival rate for a woman her age when diagnosed with pancreatic cancer is zero. Zero. And yet here she is.

She seems like the kind of person who will serve until she can no longer serve. In academia we call this the "feet first retirement plan." The kind where they carry you out of your office for a ride in a nice black car. It's not surprising. Her husband is dead and it's hard to imagine she wouldn't get bored sitting around waiting for The End without the job to keep her active. That said, she's also smart enough to understand her position on the Court and the politics of appointing replacements.

One off-the-wall strategy would be to retire now. Force the Senate's hand on voting for replacements and let her preferred ideology come out ahead in the long run. Subtracting Scalia (who gets it right 0% of the time) and Ginsburg (95%) and replacing them with two people who are 50 years old and will get it right 75% of the time but for the next 25 years is a win any way you look at it. Obama might not be able to appoint a replacement who matches RBG for progressive zeal, but he certainly could appoint two left-center types who would vote in the public interest far more often than not.

Alternatively, if the Democrats make gains in the Senate in 2016 and retain the White House – the first is almost certain, the second more likely than not right now – Ginsburg may want to start thinking of retiring before January 2019. She would be nearly 86 years old at the time. If the Democrats outperform expectations and manage to take control of the Senate in this year's election, this becomes a no-brainer. There will be nowhere to go from that point – Democratic president and Senate – but down in terms of the environment for her replacement to be named.

It's tempting to say it's her life, do as she pleases and be happy with it, but the reality is that her position affects 320,000,000 Americans directly and intimately. If she is as committed to her beliefs and ideology as she appears sincerely to be, it would be irresponsible not to think about the circumstances under which her successor would be appointed.

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28 Responses to “EXIT STRATEGY”

  1. NC Nate Says:

    The only problem with her retiring now (as I see it from the cheap seats), is that it throws SCOTUS back to a conservative majority (4-3) in the likely event of a protracted confirmation battle. But I suppose the question then is whether SCOTUS can even act on cases with only 7 justices serving.

    Ginsburg is pretty shrewd, I'm sure she's counting on a Dem Senate and a Dem President in 2017, and will make her move off the court then.

  2. mojrim Says:

    While I sympathize with your position you are overlooking a crucial element: the nine justice bench is a creation of congress and can be altered at will. All that is needed, in practical terms, is an odd number to prevent deadlock, and RBG's retirement would return us to the unpredictable swing court we just got out of.

  3. SeaTea Says:

    "It's her life, [let her] do as she pleases and be happy with it" works for Grandma spending her last few years at the casino. It does not work, as you said, for someone whose replacement will be deciding nearly everything about the American quality of life for a generation.

  4. mojrim Says:

    Also, to be fair to the man, he was always right on the 4th amendment and nailed it on Crawford v Washington.

  5. shrubsho Says:

    Read this today: makes sense.

    And if it makes sense, why not ask RBG to step down and just do a two-fer?

  6. NC Nate Says:

    And I suppose I should have googled it before commenting, because the Supreme Court can and has ruled with 7 justices.

  7. Greg Says:

    He was NOT always right on the 4th Amendment.he was sometimes right, but Google Whren and find out how wrong he could be.

  8. Ridnik Chrome Says:

    Ed, I wish I could be as confident as you are regarding Obama's ability to get a replacement for Scalia through the Senate. Anyone Obama is likely to pick will create a 5-4 center-left majority, and if that happens it will be game over for the conservative movement as we know it. So they are going to fight this tooth and nail, to the absolute last man. They have to. Their backs are to the wall and they know it…

  9. Ryan Says:

    "…Scalia (who gets it right 0% of the time) and Ginsburg (95%)…"

    To be fair, anywhere from 1/2 to 2/3 of rulings are typically unanimous. That means that, assuming Ginsburg really was 95%, Scalia mathematically would have had to be right no lower than 45% and often over 50%.

  10. geoff Says:

    I have been expecting the Notorious RBG's resignation from the court since President Obama's reelection. And I don't believe anyone has mentioned it since your earlier post, but I'm sure she must be heartbroken to lose her old friend Nino. (Yes, I find it hard to believe too, but their close friendship has been well documented over the years.) I'll be very interested to see what she does, but I don't see her stepping down until her health or death forces the issue.

  11. mothra Says:

    Just a small point: The Notorious RBG was younger when diagnosed with pancreatic cancer and it was operable. Survival rates go up significantly when the cancer is operable–and it has been more than five years since her surgery/treatment, so she is one of the lucky ones. The main reasons pancreatic cancer has such high mortality rates is because a)it is usually found after it has spread all throughout the body and the only hope for treatment is to prolong life; and b)even if it hasn't spread, it is very frequently inoperable, so it will spread. Treatment can slow the spread, but that's all it can do.

  12. vista Says:

    Personally I hope RBG doesn't step down until she sees who Scalia's replacement is and who the next president will be and if the democrats have senate majority. I'm ok with her helping to make decisions that affect 300 million
    Americans.

  13. Alan C Says:

    If it were me, and there were a Democratic President and Senate, I'd hang on long enough to announce my retirement on Jan. 21, 2017.

  14. c u n d gulag Says:

    SCOTUS Justices tend to live a long time.
    "Notoriuos RBG, " being one of them.

    Mercifully, Scalia didn't live long enough to do even more damage.

    Now, the battle will be on:
    Obama v. GOP controlled Senate.

    And I, for one, happen to like those odds!!!

    Stealthily, by hook, and/or (not) by crook, President Obama has had his way.
    He kills the GOP, with caution, calmness, and empathy.

    FSM, I will miss this son of a (not) gun/(not) bitch!

  15. John Says:

    @Mojrim You sure about that?

    https://www.themarshallproject.org/2016/02/17/policing-after-scalia#.96FMefSMx

  16. Rick Wayne Says:

    RBG's resignation now wouldn't force the Senate's hand, it would give the GOP an irresistible incentive to block any nominee other than, say, Rush Limbaugh. If RBG goes we're back to a conservative majority, 4-3 and full steam astern into the 1890s!

  17. mojrim Says:

    Re: Whren v US
    That's a textbook case and one I happen to agree with. The court previously held that it would not enter the mind of the officer, only judge his actions. A violation is a violation, and driving is not a right.

    Re: Policing after Scalia
    I'll concur in part and dissent in part. He's right about privacy issues but definitely a supporter cops doing whatever they see fit with sticks and guns. That said, I have never been comfortable with excessive force being lumped into privacy under the 4A in the first place, and this kind of mischief rather confirms my distaste for it. I can't recall it now, but I remember that an alternative standard was previously argued for but lost to a 4A interpretation.

  18. Greg Says:

    Your principle sounds nice but what he actually authorized in Whren is that even when the cop admits to pretext and allows us into his head it's ok as long as the cop says there was a violation also. That means for traffic stops there simply cannot be a fourth amendment protection as long as the cop says there was a violation. That's not the same as saying cops get the benefit of the doubt when they say there was a violation.

  19. mojrim Says:

    @Greg:
    In most things all courts will take the cop's word on the subject of an infraction. While this is extremely questionable, the question falls outside this discussion.

    In the end an infraction is cause for a stop, regardless of why the officer chose to perform it. Maybe he was trawling for drugs, maybe he didn't like your car, maybe his wife made him sleep on the couch last night and he hates everyone at the moment. None of that matters when the legislature has declared X to be a stopping offense.

  20. HoosierPoli Says:

    I'll never forgive O'Connor for retiring when she did. She should have known better. Ginsburg is shrewder than that.

  21. JustRuss Says:

    @mojrim: Scalia wrote the majority opinion for Vernonia v. Acton, permitting random drug testing of high school athletes. Not very 4th Amendment friendly.

    Apropos of nothing, Vernonia's on the route I take when I want to avoid Portland traffic. Nice little town.

  22. Greg Says:

    Mojrim, I assure you I know that they take the cop's word. It doesn't make me ok with losing yet another arrow from my quiver as to what I can challenge. I also understand the alleged logic of the case. It's bad logic and it was a ludicrously sweeping decision on a terrible set of facts. It's my go to case for Scalia's excesses, but it's not the only one. Personally, too, while Crawford is at least defensible I really enjoyed Sotomayor's deft reversal and the especially petulant dissent he was left with in the subsequent case that escapes me right now. Sotomayor, for my taste, is the best justice on the Court right now in terms of writing and argument. RBG's prose is a opaque as Scalia's was screechy.

  23. bb in GA Says:

    @cund

    "Stealthily, by hook, and/or (not) by crook, President Obama has had his way.

    He kills the GOP, with caution, calmness, and empathy."

    I agree with you that has been the case in every showdown I remember.

    And thereby hangs the tale of why the R base is so driven beyond distraction. The R 'lected officials kept saying "Well, we can't do anything 'cuz President O has both branches. Give us the House and we will throttle him with the Power of the Purse."

    Done.

    Then nothing happens but a bleat. "We really can't do anything that is meaningful because it goes to the Senate to die after we pass it in the House. Give us the Senate and hold the House and then we will really whup up on that President and those nasty Ds"

    Another Establishment R Pres failure in between (Mitford)

    Finally, done in 2014

    Crickets followed by "We really can't do anything because Pres O will veto anything we successfully pass and we don't have a veto proof majority."

    So they don't even try (or so it would appear.) and….

    Like Cund says – I believe that our President has gotten the best of the Rs every time they have gone head-to-head.

    So, I think the R base has sailed on the existing order and that is why they are even close to entertaining a disaster like Mr. T.

    Meanwhile the bolierplate on the Left has been and continues to be "Woe is us, our Articulate and Clean Black President (per Joe Biden) can't get anything meaningful done because of those nasty Raaaaysist Repuglicans thwarting him at every turn" Freshly turned ground just the other day by Mr. Juan Williams.

    Which is it ? Both/And ?

    (or more practically) please provide (anyone, not just Cund) the top three examples of the Left's complaint come true about the thwarting. This is not a taunt, I really would like to be educated on y'all's opinion on this.

    BTW – I gave up on the Rs a long time ago – voted for that other governor back in 2012.

    //bb

  24. Robert Says:

    My favorite Scalia moment was when he explained how torture could be used without violating the Constitution.

    Use torture during interrogation. After trial and sentencing, prisoner is no longer tortured. Constitution only forbids torture as a *punishment*.

    bb, it is customary political practice in the USA to exaggerate the threat of the Other and minimize the influence of Us. That way, We are always the embattled minority, They are the overwhelming majority. This works for everybody. As for what is truth, ask jesting Pilate.

  25. mojrim Says:

    @JustRuss: While I would not have done so, and as a parent would have opposed such testing, I cannot agree that it was a privacy violation. No one is required to participate in intramural athletics and the governing body has a clear interest in the subject.

    @Greg: While I sympathize with (and share) your desire I cannot agree that it implicates privacy rights. SCOTUS has long held that the cops reasons are not relevant if the act itself was lawful. That decision was merely carrying forward earlier precedent maintaing the state's police powers.

    I agree in general about Sotomayor and very much so about Ginsberg.

    @Robert: As with Whren, the desirability of a given outcome does not relate to it's constitutionality. Pretty much everything done in war would not pass muster in a civilian court and SCOTUS has had the good sense to steer clear of these matters.

  26. Quaestor Says:

    @JustRuss – the Mediterranean Restaurant in Vernonia (Blue Moon Cafe) is excellent. Only open in the summer, though.

  27. Beleck Says:

    cry for me a river BB. i am horrified to see the R Congress can't stand up to the Black Overseer on the R/D Plantation. it is just beyond all capacity to realize the R's are so bereft of hope after 50 years of successfully dividing and conquering those who dare believe anything other than what the R's allow.

    also another good take is the ability to stop anything Obama did and rail at the R's impotence. Stringing on the Evangelicals and Whites for votes is just who the R's are and always have been. read your own history! The R's just have a different operational directive than the D's. the R's want it all and no one or no thing will stand in their way.

    Whatever it takes has always been their successful motto. and they have it all now.
    a Black President to complain about for endless BS reasons. He's black, he's eloquent, and he's one of them. every person he promotes is pro Wall St. Getting rid of abortion, welfare and any other social construct that unites people would be counterproductive. R's would have to find another reason to screw their base over.

    But Americans really into pain and abuse. they love themselves pain and hate and war and The R's and D's offer them endless days spent in that "state" of bliss.

    it is also fun to hear you deny Fox being the PR factory for the R's. Truth hurts and is not nor ever has been part of the R's constitution. Whatever it Takes is the R's motto as time has proven.

    it is good to see you run from the R's failures to their unfinished business. too bad you don't vote for Trump just because he is one of the few who dares to speak the TRUTH that is against the R's operating practices. Never criticize another R's is one of the R's faithfuls beliefs and standard policy. the R's have gotten this far since Nixon by never telling the Truth,until Trump. Frankenstein created and the payback is such, i hope Trump continues to make this election worth following.

    The D's are just Vichy collaborators in the Grift. like two Peas in a pod.

  28. metaphysical Says:

    metaphysical

    EXIT STRATEGY | Gin and Tacos