President Obama cannot be happy about the Supreme Court. Not because of Republican opposition to his TBD candidate for the spot vacated by Justice Scalia. No, his irritation must be with the 83-year-old Justice Ruth Bader Ginsburg. For the past two years, the Obama Administration has been dropping not-so-subtle hints that the oldest Supreme Court Justice ought to retire and let Obama name a much younger replacement.
His administration certainly has vetted a set of ultra-liberal jurists. But since the Ginsburg seat is not open, that list is useless. Only two vacancies would allow Obama to put a die-hard liberal on the Court. Republicans can get away with keeping one seat vacant, but two vacant seats would be impossible to maintain.
If Ginsburg were to leave, it would give Obama the chance to name two Justices. He could offer up a committed liberal and a not-quite-as-committed conservative as a trade (with the conservative guaranteed to be much older than the liberal). While Obama would not shift the Court completely to the Left, he would be able to edge it leftward and leave the court with three liberals who have decades to serve. But, Ginsburg won’t play ball. And who can blame her? The prospect of leaving the vital and stimulating Supreme Court for days of mah-jongg and early-bird specials cannot be very appealing. For a President who prefers to rule by executive order and so clearly disdains dissenting views, the unwillingness of Justice Ginsburg to bend to his will must be particularly galling.
Obama has two options: 1) Nominate a hard-core liberal in a losing fight designed to pander to the left and agitate the right or 2) nominate a less ideological "swing" vote and dare the GOP to knock down such a "compromise" candidate. There is a truly bipartisan third option, which would be to collaborate with Judiciary Chairman Grassley and name a mutually acceptable candidate. Rather than waiting for Obama to make his move, Grassley and McConnell should consider making the first move themselves and challenging Obama to collaborate on a nominee. But not just any nominee, someone who is a reliable vote against executive overreach.
The task at hand is to consider the long view. Considering the current makeup of the Court, the average age of departure for the current Justices’ predecessors is 80. The conservative bloc has one Justice, Kennedy who will reach 80 this year. Justices Roberts and Alito would not reach 80 until 2035 and 2030, respectively. Justice Thomas gets to 80 in 2028 – but given his personal and professional experiences, I would bet that Thomas is determined to bedevil the left as long as he can draw a breath. The liberal bloc has Ginsburg turning 83 this year and Justice Breyer 78. Justices Sotomayor and Kagan would turn 80 in 2034 and 2040.
The election of a Republican could set the stage for a 7-2 conservative majority in the first term, certainly by the end of a second term. If Senators McConnell and Grassley were confident of a win in November, the strategy is easy: reject any Obama nominee.
Would were it so. It hardly needs to be emphasized that such a result is far from certain – perhaps a tossup.
If the GOP blocks any Obama nominee and Hillary Clinton is elected President, the nomination of a hard core liberal is a certainty. A President Clinton nominate one after another until she satisfies the base of the party. There is simply no stopping it.
As for the three Justices in their 80s, Ginsburg will be out in the first term. Appointed by Bill Clinton, successor named by Hillary Clinton – first woman President? Easy call and easy departure for Ginsburg. Justice Kennedy might well hang on to his seat through a first term to maintain some sort of balance, but that still leaves a 5-4 liberal majority. If Breyer leaves at 80 or 81, then the liberal bloc remains secure.
The calculus changes if a swing Justice is nominated by Obama. Hillary Clinton would be looking at a 4-4 Court with one vote in the balance. If Kennedy hangs on, she can’t alter the ideological balance in a first-term. Given how bad a politician she is; Clinton has to have the best odds for a one-term Presidency since Jimmy Carter.
The problem is this issue of a "swing" vote. There certainly is no guarantee that the Justice confirmed will hold true to his or her ideological claims. By definition an ideological moderate is malleable.
Given the math of the court ideology is not what the Republicans need to be concerned with. What is needed is a Justice who believes in our system of checks and balances, opposing untrammeled executive action. In the event of a Clinton Presidency, a Court that recoils at blanket executive orders, overreach in federal rulemaking and a rampaging bureaucracy will be necessary.
If a Republican is elected, an unsatisfactory moderate Court would return to a 5-4 conservative Court with the retirement of Ginsburg. If Breyer also departs, the Court becomes a 6-3 fortress.
Essentially, a checks-and-balances moderate becomes a vital bulwark against executive overreach by a Clinton Administration. In a Republican administration, the appointment moderate becomes superfluous when Ginsburg leaves.
Of course, the whole process hinges on Obama and for him the term "bipartisan" is just a word to be used for propaganda purposes. But given the stakes, it would be worthwhile for Grassley and McConnell to at least make an attempt to get some insurance against a far left Hillary Clinton Court.