There are some singers that know exactly when to go, and others hang on much too long and that is the same, that is the same with judges – Ruth Bader Ginsberg
Shortly after being inaugurated in 2009, former President Barack Obama famously told Republicans who were hoping to negotiate details of a stimulus package with him that “elections have consequences”. As is often the case with provocative statements like this, they can one day be turned against you. The day arrived last week with the passing of Supreme Court Justice Ruth Bader Ginsberg.
When Obama made this statement, he was of course referring to his own election in 2008. It would be easy to assume that the election most crucial to filling the vacancy for Justice Ginsberg was when President Trump was elected in 2016. It wasn’t. It was the 2014 mid-term election during President Obama’s second term. In June of 2014, the Supreme Court term for that year had come to an end. At the time, Democrats controlled both the Senate and the Presidency. The mid-term elections were coming up in four months, and the polls were showing that several Democrat seats in the Senate were vulnerable. Justice Ginsberg was 81 years old and had already been diagnosed and treated for both colon cancer and pancreatic cancer. Later that year she would also need heart surgery.
At that time, a number of liberal academics, most notably the Dean of the University of California Law School, strongly suggested that Justice Ginsberg retire. There was even speculation that Obama himself tried persuading Ginsberg to retire. Obama supposedly made that suggestion at a private lunch he had with Ginsberg the previous summer. In a subsequent interview with Reuter’s, Ginsberg described that lunch date as “unusual”, but denied the President pressured her to step down. Had she retired then, Obama and Senate Majority Leader Harry Reid could have guaranteed the nomination and confirmation of an ideological clone of Ginsberg to the court. That would have ensured a new Supreme Court Justice whose judicial philosophy was congruent with the Democrats.
For the two prior SCOTUS vacancies occurring during Obama’s tenure, he picked Sonia Sotomayor (2009) and Elena Kagan (2010). Both these choices proved to be exceptionally reliable progressive voices on the Court, and both almost always voted in lock step with Ginsberg. There is no doubt Ginsberg’s successor would have remained in that mold had she retired at that time. In the Senate, Harry Reid had already scuttled the filibuster for lower level federal judicial appointments. This made judicial confirmations easier in the face of any opposition by requiring only a simple majority to end debate. Reid most certainly would have extended that new norm to SCOTUS nominees if there was any Republican resistance to another progressive Obama pick.
Despite all the puzzle pieces being in place in mid-2014, and polls foreshadowing Democrat losses in the upcoming mid-terms, Ginsberg decided to stay on. Later that year, after the dust had settled in the mid-term elections, the Republicans won a landslide in the US Senate. Harry Reid and the Senate Democrats had previously enjoyed a robust 55 – 45 majority, but they lost a total of nine seats in that election, flipping control of the Senate to the Republicans. As it turned out, Mitch McConnell and the Republicans would remain solidly in control of the U.S. Senate for the rest of Ruth Bader Ginsberg’s life.
There was no hope of a Republican Senate showing deference to a progressive Obama nominee should a SCOTUS vacancy arise in the last two years of his term. That reality was driven home when Justice Antonin Scalia died in February of 2016. Obama knew he now had no leverage with his choice to replace Scalia. He tried to salvage the vacancy by nominating moderately progressive Judge Merrick Garland as opposed to a firebrand liberal like his previous two picks. It didn’t matter. The nomination was ignored by the Senate, as was their prerogative, and the seat remained empty for the rest of Obama’s term.
The Democratic reversals in the 2014 mid-term elections were key in eventually filling this Supreme Court vacancy. Instead of middle-of the-road Merrick Garland being on the Court, constitutionalist Neal Gorsuch was nominated and confirmed the following year. As long as the Republicans controlled the Senate, they would never confirm any new Supreme Court Justice as far to the left as Justice Ginsberg. It didn’t matter who was President.
Did Justice Ginsberg make the right decision in 2014? The events that unfolded after the SCOTUS term ended in June 2014 were not entirely unpredictable or surprising. A cynic might say Ginsberg was selfish and not looking out for the best long-term interests of her ideologic group. If Ginsberg was truly concerned that the Court retain a strong progressive voice well into the future, why not use the “bird-in-hand” opportunity she had in 2014 to cement that future? From a raw political strategy point-of-view, Ginsberg made a terribly risky decision given what was known at the time about the Republican prospects in the upcoming Senate elections.
Ironically, a nearly identical choice to that which Ginsberg faced in June of 2014 was laid at the feet of Justice Anthony Kennedy exactly four years later in June of 2018. At that time, the Republicans controlled both the Senate and the Presidency. Polling for the upcoming mid-term elections that year suggested several Republican Senate seats were vulnerable. Justice Kennedy was 81 years old, the exact same age Justice Ginsberg was when she made her fateful decision to remain in place in 2014. Unlike Ginsberg, Kennedy did decide to retire, assuring that his successor would be confirmed before the mid-term elections and would be someone with a similar ideological philosophy. The result was the confirmation of conservative Justice Brett Kavanaugh. At age 53, Kavanaugh will potentially serve on the court for the next 30 years.
The Republicans not only retained the Senate in the 2018 mid-terms but gained two seats in the process. This increase was no doubt heavily influenced by disgust with the all-out personal assault on Justice Kavanaugh by the Democrats at his confirmation hearing just weeks earlier. Voters were simultaneously incensed with the behavior of Democrat Senators and happy with the comportment and ideology of Judge Kavanaugh. Should there be another SCOTUS vacancy in the succeeding two years, the Republican Senate would now have an even greater advantage. Justice Ginsburg’s determination in 2014 to stay on the bench, followed by her passing last week, provided that vacancy.
We anticipate an ugly, below-the-belt confirmation brawl, designed by the Democrats to sideline the nominee for the vacant SCOTUS seat. Despite this vindictive gauntlet, which Democrats perfected during the Kavanaugh hearings, we believe the Senate will confirm the President’s pick. The Democrats gave the Republicans the very tools they will need to get this done. First, Dems torpedoed the judicial filibuster, paving the way for McConnell to do the same with SCOTUS nominees. Second, the vile character assassination of Brett Kavanaugh was so loathed that it galvanized conservative voters in the fall of 2018. That resulted in flipping two additional Senate seats to the Conservative side in the mid-term election. The Republicans now enjoy a comfortable majority for the pending SCOTUS confirmation vote.