The White House says it’s not worried about a possible retirement by Ruth Bader Ginsburg or any other Supreme Court justice.
Speculation on the high court’s next vacancy has centered on the 81-year-old Ginsburg, who has had health problems.
Some on the left have openly worried it could be tough for the Obama administration to fill a vacancy, especially if the GOP wins back the Senate this fall.
Republican senators are already irked with Senate Democrats’ unilateral decision to change the chamber’s filibuster rules so that all presidential nominees apart from the Supreme Court may be considered by majority vote. Until the rule change last year, nominations needed to clear procedural hurdles that require 60 votes.
But administration officials and those close to the White House say they're not particularly concerned about a Ginsburg retirement, before or after the midterm elections, or the likely difficult process to replace her.
And they are certainly not trying to apply any indirect pressure for Ginsburg to step down now, which would set up a nomination fight before the midterm elections.
While the officials conceded that they would not want to be caught unprepared by a decision by Ginsburg to step down, it's ultimately the justice's decision and one “that transcends politics,” one senior administration official put it.
The administration also thinks GOP opposition to an Obama nomination to the Supreme Court could backfire on Republicans, one senior official said.
The official said it would be difficult for Republicans to explain a decision to hold up an Obama Supreme Court nomination, assuming there is a position to fill.
The official pointed to the confirmation of Justice Stephen Breyer, a nominee of President Clinton’s who was confirmed in 1994, months before Republicans won the House and Senate in a landslide.
Breyer’s nomination was approved in an 87-9 vote, with 33 Republican senators voting in support of Breyer.
Still, times have changed since 1994, and there’s reason for Democrats to worry that if Obama gets another chance to make a nomination to the high court, it will be more difficult.
Senate Republicans angered by the change to the filibuster have used procedural measures to slow the nominations of federal judges to a crawl.
Republicans have filibustered every district court nominee since the filibuster was changed, even though more than two-thirds of the judges were eventually confirmed with fewer than five no votes.
Obama nominees to the bench waited an average of 238 days from nomination to confirmation — longer than the 221 days a nominee waited on average before the filibuster reform. During President Bush’s time in offices, nominees waited an average of 171 days.
“The idea that a president’s Supreme Court nominee should be treated respectfully has been gone for three decades,” said Southern Methodist University political scientist Cal Jillson. “In this era of hyperpartisanship, and especially after the filibuster reform, Supreme Court nominees will have a rough ride.”
A former senior administration official predicted that even if Democrats do keep the Senate, the potential nomination will be a “huge time suck” for the administration because Republicans “will make it a time suck.”
“They have to put a lot more attention into getting her confirmed either way,” the former official said. “Republicans will view this as fair game either way and they'll feel emboldened to say they want someone's views more consistent with their beliefs.”
“Republicans will wage a real fight if they feel that a Democratic president is attempting to place anybody on the court that is on the left end of the spectrum,” said Democratic strategist Tad Devine. “They’re going to go all in and do everything they can to block it.”
But another top Democratic strategist said that the White House should be “more concerned” that Ginsburg retires during a specific window: After January 2015 and before January 2017, “because we will expand our margin during the next cycle in the Senate.”
“I think it means that they hope that if Ginsburg is going to retire she does it soon,” the strategist said.
“Right now, all we would have to do is pick off 5 Republicans,” the strategist said. “[It’s] hard but doable, especially if it’s someone like [Justice] Sonia Sotomayor and [Majority Leader] Harry Reid controls the floor.”
There would be other benefits for a Ginsburg retirement this year, the strategist said.
If Ginsburg retired tomorrow, “that would be good for Democrats electorally.”
“It would motivate our base,” the strategist said, adding that in the midterms “we have a huge drop off of voters because they don’t care about Senate elections, or don’t think they matter.
A huge Supreme Court battle “shows how crucial the Democratic Senate majority is and will activate our base,” the strategist said. “It would make the election sexy. Imagine Hobby Lobby times ten.”
Those close to the White House say there haven’t been formal discussions about a potential retirement but that Ginsburg is most definitely aware of the political landscape around her replacement.
“Having gone through a confirmation battle I am sure she understands the dynamics around it,” the strategist said.