Leave RBG Alone

In a week when Jeffrey Toobin could write this, in the New Yorker

There were two lessons from Tuesday’s argument in the Hobby Lobby case in the Supreme Court. First, it’s very important that there are now three women Justices. Second, it’s even more important that it takes five votes to win…

There was little doubt where the Court’s three female Justices stood. After Paul Clement, the lawyer for Hobby Lobby, began his argument, twenty-eight of the first thirty-two questions to him came from Ruth Bader Ginsburg (four questions), Sonia Sotomayor (eleven), and Elena Kagan (thirteen). The queries varied, of course, but they were all variations on a theme. The trio saw the case from the perspective of the women employees. They regarded the employer as the party in the case with the money and the power…

The outcome of the case is not certain, although it does seem like eight votes are locked in, split along the customary four-to-four lines… There is no such thing as a women’s position on this case or on any other issue. But there is such a thing as women’s voices, and with this case, especially, it was important that they be heard. On this day at the Supreme Court, they were.

… It seemed like a good time to highlight Dahlia Lithwick’s cogent argument at Slate:

Ruth Bader Ginsburg Is Irreplaceable. All You Liberals Trying to Push Her Out, Think About That.
… Over at the Atlantic, professor Garrett Epps has just written in defense of Ginsburg. You should read the whole piece, but two important points he makes are worth repeating: Ginsburg plays a crucially important role in the Roberts Court as the senior justice on the liberal bloc, not just in terms of assigning opinions but in terms of writing them. If anything, Ginsburg has been stronger in recent years than ever and has been a crisper, more urgent voice for women’s rights, minority rights, affirmative action, and the dignity of those who often go unseen at the high court than ever before. She has gone from rarely reading her dissents from the bench to doing so with great frequency, calling out the majority for what she sees as grave injustices and proving that her voice is both fiery and indispensible. Telling her that her work is awesome, but it’s time to move on is tantamount to saying that a liberal is a liberal and that Ginsburg brings nothing to the table that another Obama appointee will not replicate. That analysis suffers from exactly the same realpolitik flaw Ginsburg’s critics ascribe to her: that counting to four, or five, is more important that the justice herself. Ginsburg, like Antonin Scalia, is writing those dissents for law students, for the case books, and for Congress. Not all justices are created equal in that regard…

It strikes me as interesting that regular court-watchers tend to be affronted by suggestions that it’s time for Ginsburg to go, just as political scientists are astonished that it isn’t. Maybe Linda Greenhouse, Epps, Bazelon, and others are considered by the Ginsburg’s-got-to-go crowd as simply captive to the same “justices aren’t political” brainwashing as Ginsburg, but maybe they just see Ginsburg through a different lens…

Reproductive rights advocate and writer Jessica Mason Pieklo suggests that it’s not the legacy of Roe we should be obsessing about anyhow, but rather why it is that Democrats can’t seat progressives no matter which party is in power. I agree. I’m not naive enough to suppose that a bird in the hand is always the answer, but the fact that President Obama can’t get a civil rights lawyer confirmed to a civil rights position in this political climate or seat a surgeon general who believes gun deaths are connected to public health tells me that the argument that he could easily confirm a Ginsburg 2.0 is naive as well. Ginsburg herself often says that the chances of another Ginsburg being confirmed to the court today are negligible. It’s perverse in the extreme to seek to bench Ginsburg the fighter, simply because Senate Democrats are unwilling or unable to fight for the next Ginsburg.

78 replies
  1. 1
    pat says:

    Thank you for this. I was also among those who thought she should retire now so Obama could name her replacement, but now I’m convinced that she can not be replaced.

    I won’t go into a long rant about the democrats. But I could.

  2. 2
    burnspbesq says:

    “The cemeteries are full of irreplacable people.”

    If you’re in favor of Justice Ginsburg staying on the bench as long as she is able to do the work and wants to be there, you’d better be committed to doing what it takes to elect another Democratic President in 2016. Because if she leaves the Court while a Republican is in the White House, the next female Justice is likely to be Janice Rogers Brown, or someone even worse.

  3. 3
    mikej says:

    She’s what, 80? She’s going to be replaced either by Obama or his successor. Can you guarantee it won’t be Rand Paul or someone equally loathsome doing the appointing?

  4. 4
    Betty Cracker says:

    I hope Justice Ginsburg is on the court for a thousand years, both because of her own merit AND because I doubt anyone Mr. Obama nominates can get confirmed by the loons in Congress.

  5. 5
    Halcyon says:

    I love the Notorious RBG. But unless you can guarantee me that she isn’t going to die any time soon (She is, you know, 81 years old) then it’s time for her to go while there’s at least a nominally democratic senate unless you can also guarantee that the Senate that gets to replace her is better than the current one. Sorry, those are the choices. Ginsburg’s replacement is either going to be decided by a largely worthless democratic senate or a *completely horrifying* republican one. Those are your options. I’m not happy about that, but I’m also not willing to pretend she’s going to live forever just because the fact that we have to choose between, presumably, “mediocre” and “horrifying” for her replacement are the realistic options we get, and the longer it goes, the more it skews towards “horrifying.”

  6. 6
    EriktheRed says:

    At this point I’m not sure that the Repubs wouldn’t just let a vacancy on the court remain until they ge one of their guys in the WH.

  7. 7

    And the Dems, especially most of the Senate Dems—just don’t seem to have any fight in them. The only ones who do are the thoroughly marginalized House Progressives.

    Yeah. I’m bitter. One of my Democratic Senators bargained away the unemployment extension, apparently just because the Dems didn’t want another budget fight. Thanks, lady. And they’re going to have a fight anyway. I can’t even accuse them of cowardice. Are we going to lose our freedoms and our property just because the Senate Democrats are lazy?

  8. 8
    tokyo expat says:

    I’ve had mixed feelings about this. I do think RBG has been a strong voice for the liberal side. Unfortunately, there aren’t enough justices on her side. Given her age and given the political climate, I do worry about her replacement. I agree that getting someone with her leanings is likely to be tough to impossible (though justices do grow and change over time), but I do not want to risk another Republican getting through. Look at what we have already. The Roberts court is one of the most activist courts yet and we are already dealing with the fallout from their decisions.

    Frankly, the answer is for one of the RATS to drop off, but no such luck I’m thinking.

  9. 9
    cokane says:

    whether she’s “irreplaceable” or not, she will be replaced at some point

  10. 10
    rp says:

    She *will* be replaced.

    Edit — damn it…I guess I owe you a coke.

  11. 11
    raven says:

    Looked to me like Obama BOWED his head to the Popie!!!!!!!!!!

  12. 12
    low-tech cyclist says:

    @cokane: Tru dat, but remember that Ginsburg wasn’t always who and what she is now; she grew into that.

    We need her to stay around so that by the time she has to go, with any luck Sotomayor or Kagan will have similarly grown. And probably with a good bit of help from Ginsburg.

  13. 13
    Betty Cracker says:

    @EriktheRed: That’s exactly what I worry about. They seem determined to nullify the 2012 election by any means necessary.

  14. 14
    Ben Cisco says:

    @raven: And if he had looked over the top of his head, he’d get hit with “arrogant/uppity/blahblahblah.” That’s some tiresome sh*t.

  15. 15
    maximiliano furtive, formerly known as dr. bloor says:

    If you guarantee that HRC is the next president, Ginsburg can stay until they wheel her out in a pine box. Otherwise, Lithwick’s entire argument is easily dismantled with two words: Sam Alito.

  16. 16
    OzarkHillbilly says:

    Wow. The GOP has already won the 2014 elections, the Dems will never win the White House in 2016, and the Senate will have a permanent Republican majority. Eric Cantor, Paul Ryan, Jim Inhofe, Tom Coburn, and Chuck Grassley will live forever, while Lindsey Graham and John McCain will dictate foreign policy for President Santorum. I guess suicide is the only answer.

  17. 17
    maximiliano furtive, formerly known as dr. bloor says:

    @OzarkHillbilly: Is this a response to anyone’s specific argument? Because it’s ahistorical nonsense that pretty much boils down to “Eh, so we lost Bush v. Gore. What’s the worst that could happen?”

  18. 18
    satby says:

    @OzarkHillbilly: yep, I’m sick of the gloom and doom too. While everyone ODs on conventional wisdom, a good chunk of the rest of the country is pulling away from the crazy that is the Repug party. Even in my red little area of SW MI, the formerly committed R voters are wavering a wee bit. We need positive energy to push them more, they want a party that will fight for their interests, not whine and surrender.

  19. 19
    Bobby Thomson says:

    @EriktheRed: This.

    All you urging her to retire because we need to take advantage of today’s wonderfully cooperative conditions, please put down the crack pipe. 2016 should be a great year for Democrats in Senate races. I’ll take my chances with the devil I don’t know, because I know this one wouldn’t confirm anyone until 2017 at the earliest.

  20. 20
    OzarkHillbilly says:

    @maximiliano furtive, formerly known as dr. bloor: It is a nonsense response to a bunch of nonsense about things that haven’t happened that nobody can possibly predict. For the record, I share the concern, but I refuse to get my panties in a bunch and instead of whining about all the terrible horrible things that might possibly go wrong, I choose to do what I can to see to it that they don’t go wrong.

  21. 21
    JPL says:

    Although I respect Ginsburg, she cannot sway the conservatives. What we need is a conservative to leave the court soon. Like this week.
    I’m not sure that the health care law will survive, if subsidies are stripped from the federal exchanges. Roberts will not vote to keep the subsidies, he’ll send it back to Congress to fix.

    also.. it’s time for a cup of coffee.

  22. 22
    debbie says:


    Good news, I think. I like that so many are so smug and sure of themselves. The next step will be complacency. And then Karl Rove’s next humiliation.

  23. 23
    Bobby Thomson says:

    @maximiliano furtive, formerly known as dr. bloor: Unless you can guarantee that this Senate would confirm anyone who was both appointed by Obama and had a pulse, asking Ginsburg to retire is asinine.

  24. 24
    NotMax says:

    Any cult of personality is always – always – automatically suspect.

    If we have come to the point where writing dissents is the goal, that is a truly frightening concession.

    Had the filibuster rules not been altered, would be more open to Lithwick’s argument. (And I know the changes do not apply to Supreme Court nominations – but they do allow for a quantum leap in volume of sitting judges developing a track record on the federal bench, widening and deepening the pool of potential nominees.)

  25. 25
    NotMax says:


    I guess suicide is the only answer.

    The tricky part is convincing those you named to take that step.

  26. 26
    Baud says:


    I guess suicide is the only answer.

    Right behind you.

  27. 27
    evap says:

    I love RBG and hope you lives many more years. My mother is 86 and while she has some health issues, they are mostly minor and her mind is as good (and as liberal!) as it ever was. 80 is not as old as it used to be… RBG could easily last another 4 years or more.

  28. 28
    cleek says:

    @Bobby Thomson:

    Unless you can guarantee that this Senate would confirm anyone who was both appointed by Obama and had a pulse, asking Ginsburg to retire is asinine.

    he got Sotomayor and Kagan through. not exactly “this Senate”, but no worse that this.

  29. 29
    Baud says:

    All the women justices are head and shoulders above the men justices, it’s actually a little embarrassing.

  30. 30
    JPL says:


    If we have come to the point where writing dissents is the goal, that is a truly frightening concession.

    It’s all we got!

  31. 31
    OzarkHillbilly says:

    @NotMax: True, all too true.

  32. 32
    Baud says:


    Stating the obvious ^ infinty — The Village media really, really hates and disrespects President Obama.

    (Even though I already knew this, I rarely watch TV news, so whenever I catch a glimpse when they talk about Obama, it’s like a slap in the face.)

  33. 33
    OzarkHillbilly says:

    The times, they are a-changin‘:

    “Schools bringing in hundreds of millions in bloated television contracts. Coaches making the kind of salaries that late UCLA legend John Wooden wouldn’t recognize. Athletes insisting on basic rights, if not outright cash.

    And now a union for football players at Northwestern that would previously have been unthinkable in college sports.”

    Somebody needs to show these people their place.

  34. 34
    JPL says:

    @Baud: Supposedly the President made excellent speeches in Europe, that’s all I know. MSM then changed the subject.

  35. 35
    JPL says:

    @OzarkHillbilly: The Roberts court will.

  36. 36
    Baud says:


    He also makes excellent speeches in America, but that’s all I know, because the MSM changes the subject.

  37. 37
    Baud says:

    Back on topic, anyone who still thinks there is no difference between the parties should take a look at the Supreme Court justices. If they’re still not convinced, then they are a lost cause.

  38. 38
    Elizabelle says:


    Thank you, Mr. Hillbilly.

    The gloom and doom around here makes me want to kick some asses. Republican and a few BJuicers who need spines themselves. SHUT UP.

    We can see that it’s a daunting election, but the Republicans have not won a single additional Senate seat or anything else right now.

    It’s eight months to the election, folks. Get out there and talk to people IN REAL LIFE about why this is such an important vote. They get tired of hearing Obama and Democrats dissed every time they turn on the news? They have an inkling about making voting so much more difficult?
    They can do something about it.

    Volunteer for voter registration projects. Write some letters to the editor to sustain others like yourselves who think you’re alone out there. You are not. FIND THEM. Especially the young ones.

  39. 39
    Baud says:


    There it is.

  40. 40
    Jack the Second says:

    I would really much rather Scalia retire before the end of Obama’s Presidency. I mean, what’s he waiting for?

  41. 41
    debbie says:


    Just wait for the abuse that’ll be heaped on Obama for giving the Pope seeds. SEEDS?

  42. 42
    Chyron HR says:

    The trio saw the case from the perspective of the women employees. They regarded the employer as the party in the case with the money and the power…

    Obviously somebody wasn’t paying attention when Greenwald conclusively proved that Kagan is a right-wing corporatist sellout.

  43. 43
    Dave says:

    @Elizabelle: I really don’t get the gloom and doom either. If the Republicans manage to gain the senate, which it’s still to far out to really know, that means some greater stupidity will apply for the next two years and that we have to listen to the media blather about some Republican resurgence for a few months as if this wasn’t a midterm election with a senate cycle which strongly favored the Republicans. 2010 was a disaster primarily because it was a census/redistricting year and therefore we had no chance of regaining the house in 2012 and without both houses of Congress and the presidency there is almost nothing positive which can be accomplished. 2014 is not. Midterms suck for Dems certainly a dynamic we need to figure out how to change over time but this isn’t new. I suspect that congress won’t find a reason to impeach Obama though I would almost hope they invent something because they won’t succeed and I suspect that will rebound to an even stronger 2016 than I am hoping we will get. So no I don’t get the doom and gloom 2014 is not 2010 and it matters far less. Obviously I want to keep the senate and make gains in the house but unless there is an unprecedented Republican victory, and if that happens we were screwed anyway, it’s not going to make a huge difference (unless USSC justice retires or dies in that time)

  44. 44
    lichnor says:

    This is idiotic.

    Liberals aren’t trying to rush her out the door because they don’t like her, or don’t think she is the great jurist that she is. Liberals are scared because she’s 80, Obama only has 2 years left, and who knows who is going to replace him? The republicans were in the shit room just months ago with their government shutdown. Now, less than a year later, they are looking to take control of both houses of congress!

    People like to talk demographics when it comes to POTUS elections and the advantage everyone thinks democrats have in these elections (as opposed to mid term elections), but you never know and this uncertainty, with the possibility that Ginsburg could/would retire, or god forbid die, in 3+ years when there is a republican in office changing the court make up from 5-4 to 6-3? That’s a nightmare.

    THAT is why they want to show RBG the door. All this “Oh, liberals don’t really appreciate her” crap is pure concern troll.

  45. 45
    Suffern ACE says:

    To replace Ginsberg with a liberal, the president would need to appoint someone in his or her late 60s. Arch conservatives can be appointed in their late 40s.

  46. 46
    Mike E says:

    @Elizabelle: No, you shut up!! ;-)

    Seriously, who keeps lighting the Great Orange Sofa on fire? And even moar seriously, who’ll lend me a hand in getting my new blue couch up into my apartment? I got beer and chicken with pasta…anyone?

  47. 47
    MomSense says:


    Of course he will get slammed for that gift. I read the description of the gift this morning and it was really thoughtful. They had a beautiful seed chest built from leather and wood reclaimed from the oldest Catholic Cathedral in the US. It contained seeds from the White House garden in honor of the Pope’s decision to open his papal gardens to the public and Monticello is giving seeds that will yield tons of food to the Pope’s chosen charity. Pretty cool.

  48. 48
    Elizabelle says:


    I agree with you. Have not read the articles, but it’s a mathematical issue.

    Also, RBG’s had health challenges, and while she’s fine now, she’s not immortal.

    Also, FWIW, if we still had Justice Sandra Day O’Connor, I think she’d vote against Hobby Lobby.

    That woman ruined her legacy by softfooting GW Bush into the White House, but she wouldn’t stand for this archconservative crap either.

  49. 49
    JPL says:

    @Mike E: It’s a little early for chicken and pasta but I’m game.

  50. 50
    Paul in KY says:

    @EriktheRed: I think 5they would try that.

  51. 51
    OzarkHillbilly says:

    @Mike E: Ouch! Sorry, my back just started acting up.

  52. 52
    Mike E says:

    @OzarkHillbilly: @JPL: It’s all good, I might just keep it in the apartment lobby…it’ll spruce up the place! My real project is setting up a bar next to my balcony door, for the serious, epic parties I’ll be throwing in that beeyotch.

  53. 53
    Culture of Truth says:

    Who’s trying to push her out?

  54. 54
    dedc79 says:

    There are two issues that are being conflated.

    In this day and age, a Supreme Court Justice has two legacies:
    1) Their votes/opinions
    2) Their replacement

    At the start of a Justice’s career, issue #1 is all-important and #2 is irrelevant. But the closer a justice gets to the end of their life, the more important issue #2 becomes.

    It’s natural for us all to be more and more concerned about issue #2, because if Ginsburg gets replaced by a conservative, all the good votes she took and the good opinions she wrote can be undone. This isn’t mere speculation – we’ve seen it happen with the shift from the somewhat conservative O’Connor to the arch conservative Alito. This concern takes nothing away from her many important achievements.

    If we had a 6-3, liberal-conservative split, i’d be all for taking chances and waiting to see what happens in 2016. We don’t live in that world though. We’re already losing a ton of 5-4 votes, we need to play it safe. Ginsburg should understand that.

  55. 55
    Kazanir says:

    Ginsburg is eminently replaceable. By the Republican President who could quite possibly be in office when she dies. That is the only argument here and Lithwick doesn’t even address it. Is Ginsburg’s irreplaceable jurisprudence for the next several years more valuable than preventing the possibility of a lot more 5-4 and 6-3 conservative rulings and opinions from a Court that resembles the 1920s?

    It is a real question, not a rhetorical one. And that is why the debate is so fierce — both of those things are extremely valuable to liberalism. But the part of Lithwick you quoted doesn’t tackle this head-on at all. It handwaves past the reality of what could happen with an Alito replacing a Ginsburg.

    As a side note, l.ithwick commits another sin in talking about how impotent Obama is when he has already gotten Kagan onto the court, who was a major win. Dems still control the Senate and could probably get another Kagan past a filibuster in some way, even if it takes a real nuclear option.

  56. 56
    daveNYC says:

    $20 says that if, somehow, the Republicans get the Senate and White House, Thomas, Scalia, and Alito will all retire and be replaced by raging assholes who will all be in their thirties.

    Rather depressing that we’re going to have to try and control the Senate and WH for the next twenty years, because the alternative is a conservative dominated court that will do nothing but burn things down.

  57. 57
    inkadu says:

    @lichnor: Idiotic, exactly. The breeze from Firedog Lake must be intoxicating.

  58. 58
    Yatsuno says:

    @Jack the Second: That cannoli needs to get on getting stuck in Fat Tony’s throat. Like yesterday. That or some of his mafioso ties need to come home to roost, ifn ya know what I’m saying.

  59. 59
    tokyo expat says:

    I would love it if one of the RATS jumped ship. Isn’t Scalia up there in age?

    But RBG has pancreatic cancer. Clearly she’s managing it and there’s a lot they can do with cancer nowadays that they couldn’t before. But combine that with her age and, well, it’s a serious concern.

    I’m not trying to be doom and gloom, but we’ve been screwed over too many times for me to feel even a smidgeon of optimism. Women make up 51% of the population, is it? It used to be 8 males to 1 female (and Sandra Day O’Connor was center right, though even she seemed to move left on certain issues towards the end). Now we are at 3, and who were the ones trying to understand the case from the perspective of the women who would be hurt? The three females. ‘Cause for the males, it’s no biggie if a woman has to pay for one of these contraceptives herself. It’s not that expensive, right? We’ve taken hits on equal pay, abortion rights, reproductive rights and it continues. As we’ve seen though, a la Palin and the recent Texas GOP women, being a woman doesn’t mean you get it. We need more women who get it on the bench and that’s why I’m frightened. I don’t know whether RBG should step down or not, but I want the best bet to retain the seat in a female justice’s liberal hands.

  60. 60
    Joel says:

    Someone needs to up the trans-fat intake in Scalia’s diet.

  61. 61
    Mnemosyne says:


    It would probably be good for Ginsberg to retire before 2016. But that’s, what, 18 months from now? What’s the rush?


    Now, now, I’m pretty sure there are still a few men out there who would make good Supreme Court justices. One or two. ;-)

    Joking aside, if the opportunity arose, I’d love to see Obama poach Goodwin Liu from the California Supreme Court. I think he was one of the front-runners last time.

  62. 62
    Caravelle says:

    @tokyo expat: She has pancreatic cancer ? Isn’t that one of the deadliest cancers ? Unless someone’s proved she has a rare indolent form with a good 20-year survival rate how can anyone claim she is “fine now” despite having had “some health challenges” ? (sorry Elizabelle)

    I went googling a bit to see how off-base I was, and while it does seem she had surgery for the cancer at an early stage (which seems to be often impossible, which would account for the poor prognosis of the cancer in general), I still found this on Cancer Research UK :

    Early stages

    Even for those people diagnosed early, the outlook is not very good. If the cancer has not spread outside of the pancreas, and surgery is possible, then about 15 out of 100 people (15%) will be alive 5 years later.

    She had surgery in 2009. I haven’t found the survival rate for those 15% who survive the first 5 years so maybe the distribution has a really long tail and the fact she appears fine now means she’s OK for the long-term… But this isn’t encouraging.

  63. 63
    daveNYC says:

    @tokyo expat: Hey, what’s Breyer, chopped liver? The main problem with the current court isn’t that there’s only three women, it’s that there’s only four liberals.

    Freaking Anthony Kennedy is the swing vote.

    RBG has had both colon and pancreatic cancer. I’m sure our esteemed local medical insurance blogger could get some actual numbers, but I’m willing to bet that surviving until 2020 would be relatively long odds.

    So yeah, there’s even more incentive to do well in 2016, but I’d prefer to not risk having a rock solid five person majority on the court that would roll back every bit of progress made since 1890.

  64. 64
    Samuel Knight says:

    The saddest thing is that this is another example of why the Supreme Court has actually been a national embarrassment for most of US History. Other than the Warren Court, we’ve had:
    The Dred Scott decision – black people have no rights,
    Corprorations are people,
    A personal suit at a sitting President won’t distract the President,
    Corporations have rights and can organize but employees aren’t allowed to organize.
    Money is speech,
    Stopping counting votes preserves the sanctity of an election, etc.

    In some ways the Jon Stewart approach makes the most sense. This stuff is ridiculous and time to stop giving the male Justices the respect they don’t deserve.

    Or maybe just provoke the Consitutional crisis. NO – this ruling doesn’t make sense, period.

  65. 65
    Splitting Image says:

    Ginsburg can either leave before the 2014 midterms, between the midterms and the 2016 presidential election, or after the 2016 election.

    At this point, the problem with Ginsburg leaving now is that the Villagers will spin the narrative that the Democrats are expecting to lose big this November and aren’t confident about their chances in 2016. They will repeat this until they have safely installed Rand Paul/Ted Cruz/zombie Reagan in the White House.

    Assuming the Democrats lose some seats and/or the majority in the Senate this fall, they will have a harder time placing her successor if she leaves after this November. If she wants out in the next couple of years, she is better off leaving now than later.

    On the gripping hand, Ginsburg’s best chance of being replaced by a liberal successor is to hang on until 2017 and allow a Democratic president to nominate someone and have them approved by the Senate, which will likely have additional Democrats elected in the 2016 season. The problem with this scenario is that if Ginsburg’s seat on the court is an issue in 2016, the corporate GOP will move heaven and earth to put John Roberts II there. They will spend so much money on that election that Mitt Romney’s SuperPACs will seem like chump change.

    The real moral here is that the opposition is going to fight hard for this one no matter when they have to fight for it. Ginsburg knows this and probably thinks that it is better to be bullish about the Democrats’ chances. Regardless of when Ginsburg retires, Obama’s successor will likely replace at least one of Kennedy or Scalia, whether they retire or leave feet first. If a Republican gets to do this, neither Ginsburg or her replacement will get to do much more than write interesting dissents anyway.

  66. 66
    Mnemosyne says:


    IIRC, there are several different kinds of pancreatic cancer, and at least one kind is actually pretty survivable. Steve Jobs had one of the more survivable types but, like a dumbass, he opted for “holistic” treatment instead of chemotherapy and the cancer ended up coming back.

  67. 67
    tokyo expat says:

    @daveNYC: I agree that we need more liberals but I’m not sure I agree that it’s enough. We need more diversity on the court. We need more people of color and we need more females. It isn’t enough to depend on some white guy having the right empathy. The stakes are too high for some of us.

  68. 68
    tokyo expat says:

    @daveNYC: I agree that we need more liberals but I’m not sure I agree that it’s enough. We need more diversity on the court. We need more people of color and we need more females. It isn’t enough to depend on some white guy having the right empathy. The stakes are too high for some of us.

  69. 69
    Rob in CT says:

    Ginsburgd could be the bestest justice ever and it still seems like a good idea to replace her under a Dem president rather than risk replacement under the GOP.

    So it all boils down to whether or not you think the Dems will win in 2016, including keeping/retaking the Senate and possibly the House. If you see the GOP winning the WH as a serious possibility, then Ginsburg stepping down now is preferrable. But otherwise, no, because you want a shot at retaking the House so you won’t have to get a replacement past the nutbars currently running it.

  70. 70
    daveNYC says:

    As opposed to depending on a Clarence Thomas or possible Harriet Miers?
    The point of getting liberals on the court is that they will vote for liberal outcomes, skin color and genital layout be damned.

    The kicker for me about 2016 is that I wouldn’t put it past the country to elect a Republican because ‘it’s time for a change’ or some other equally moronic reason. Any country that re-elected GWB…

  71. 71
    sdhays says:

    I feel compelled to say that Justice Ginsburg’s brilliance at jurisprudence is not a compelling argument for her to stick around. It’s been clear for years that the majority on the Court just makes shit up as it goes along. Pretending that it’s some incredible intellectual arena is nonsense now, if it ever truly was. It’s not a reflection on Ginsburg herself that it’s so bad, but it’s hard for me to take the fact that she’s really good at dissenting as a reason to stay on the Court and risk her successor being reported by a Republican.

    Of course, as others have pointed out, Obama won’t be allowed to appoint another Supreme Court Justice no matter what Justice Ginsburg does, so this is all academic anyway.

    End lifetime appointments and the filibuster and be done with it, I say.

  72. 72
    central texas says:

    In no particular order:

    I no longer trust Mr. Grand Bargain.

    Therefore I have very little confidence that the president would appoint anything other than a nice, polite, corporatist, semi-republican. I have zero confidence that he could get even that through the present set of flatulent, lazy gasbags in the Senate.

    So the notion that we pitch out someone who is actually doing her job and replace her with an unknown who is likely a corporate shill makes very little sense to me.

    Fighting for the presidency in 2016 does not seem to me like a controversial proposal, with or without justice Ginsburg.

  73. 73
    E. says:

    Eventually a conservative justice will die while a D is in office, or vice versa. It is interesting to think about how the parties will react and what it will do to the country. How would you react if a future R president got to replace Sotomayor and picked another Scalito? And how will our R comrades react if we get to replace their beloved Clarence Thomas with a Kagan? It’s going to go nuclear really fast.

  74. 74
    Mnemosyne says:

    @central texas:

    Therefore I have very little confidence that the president would appoint anything other than a nice, polite, corporatist, semi-republican.

    Yes, because Justice Sotomayor and Justice Kagan are just nice, polite, corporatist semi-Republicans.

    Sorry, but you’re going to have to come up with something more substantive than your fee-fees to explain why you think the president would reverse himself and do something different than what he’s done in the past.

  75. 75
    Caravelle says:

    @Mnemosyne: And even if we grant that Sotomayor and Kagan are nice, polite, corporatist semi-Republicans (which doesn’t seem impossible to me given a suitable definition of non-“nice, polite, corporatist semi-Republican”), the fact remains that they’re orders of magnitude better than Roberts, Alito, Scalia et al. Which is the kind of person who’d get nominated if Republicans were in power.

    Do the Republicans in Congress have the power to block any potential nominee if Ginsburg were to resign ? I seem to recall they’d changed the filibuster rules, I assume to avoid this very problem, but maybe the issue is that conservative Democrats would side with the Republicans ?

  76. 76
    mak says:

    @Caravelle: The November, 2013 de-balling of the filibuster for certain executive branch nominees expressly excluded Supreme Court nominees from the new rule. So, as things stand now, at least, repubs could and would filibuster any nominee who is not a good conservative.

  77. 77
    Mike D. says:

    Her dissents are irreplaceable. What a perfect encapsulation of the mentality of the loser liberal.

  78. 78
    Sondra says:

    @The Raven on the Hill:
    I don’t think they are lazy. I think they are passive and not even passive/aggressive which would at least give us some old fashioned fight.

    There was never a doubt in my mind that candidate Obama would be a very good old fashioned Republican President: by that I mean like Eisenhower and his ilk. They were moderate and liberal back in the day when our side was often the reverse: especially in the South.

    It has taken generations for this pendulum to swing in the direction it is now and it will take more generations than I have life left to swng back the other way. I still remember Lester Maddox, George Wallace et alia.

    It took Teddy Kennedy most of my lifetime as well as his own, to go from being a punchline to becoming a national hero and the “Lion of the Senate” as he is affectionately called now.

    I was a young adult watching the confirmation hearings of Clarence Thomas when people were utterly astonised that Anita Hill had enough credibilty to actually testify let alone to be believed. Yes, now she too is a hero of the left, but she was not admired back then.

    We just need to keep trying to influence our congresscritters and Judges in big and small ways as much as possible, State and Federal until being liberal and progressive become ideas they embrace instead of run away from. How many of us pay attention when the States/counties elect Judges? How many of us even know who our local Judges are? It’s no different than electing better State and Federal Senators and Representatives it it?

    Think of it as overcoming the Stockholm syndrome – en masse- and you’ll see what I mean.

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