Left frets on Ginsburg’s next steps

Supreme Court Justice Ruth Bader Ginsburg might be a hero of the left, but liberals are beginning to question whether it’s time for her to go. 

Their rationale is that the court’s oldest member, who at 81 has battled colon and pancreatic cancer, should strongly consider announcing her retirement sooner rather than later to give President Obama a chance to nominate her successor while Democrats still control the Senate.

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And with the election-year clock ticking, liberals say time is running out for Ginsburg to make a decision before it could become even more difficult for Senate Majority Leader Harry Reid (D-Nev.) to confirm a nominee who shares her legal values.

“There’s a real chance the Republicans are going to take the Senate,” said Erwin Chemerinsky, dean of the law school at the University of California, Irvine. “If the Republicans take the Senate, then the ability of President Obama to get a nominee confirmed for the court is going to be much more limited.

“When the Senate is the same political party as the president, the president virtually always gets who the president wants confirmed,” he added.

Ginsburg is the court’s strongest liberal voice, something she demonstrated again last week when she delivered a blistering 35-page dissent to its ruling in Burwell v. Hobby Lobby Stores, where the conservative bloc dealt a blow to ObamaCare’s contraception mandate. 

While she is a prized justice, some liberals fear her health could take a sudden downturn and leave Obama with limited choices to replace her if Republicans control the Senate and the confirmation process.

“There are a lot of people who think that Ginsburg should resign so that Obama could appoint someone new and should do it sooner rather than later,” said Mike Lux, a Democratic strategist who declined to say whether he thinks Ginsburg should step down.

Elias Isquith, an assistant editor at the liberal website Salon, wrote that Ginsburg’s Hobby Lobby dissent would be a fitting capstone to her career.

“The celebrations of her brilliance fail to recognize that the best thing Ruth Bader Ginsburg could do for the liberal movement right now is, arguably, to call an end to a sterling and trailblazing legal career and step down from the court,” he wrote.

With Republicans in a strong position to pick up the six Senate seats they need to win control of the upper chamber, any court vacancy would shift the November election’s political dynamics. 

While Democrats might see it as their last chance to protect an Obama nominee, it could also be too late for them to confirm any proposed justice this year as Congress shifts to full-time campaign mode.

It took almost three months for the Senate to confirm Obama’s last pick, former Solicitor General Elena Kagan. If Ginsburg stepped down this month, a vote on her replacement might fall in October, right before the election.

Winning confirmation of any nominee left of center would be extremely difficult right before the election or during a lame-duck session in December, especially if Republicans are poised to take control in January.

“Republicans would do whatever they could to throw their bodies in the way of having to vote before the November election,” said Robert Borosage, co-director of Campaign for America’s Future.

He said Democrats would be in a better position to confirm a nominee in the mold of Ginsburg after winning the White House and picking up Senate seats in 2016.

“The prospects are that a Democrat wins in 2016 given how much Republicans seem to be committing national suicide,” he said. “That momentum would make it more likely that a good nominee could get confirmed then than now.”

Kent Greenfield, a law professor at Boston College, said Ginsberg should have retired last year to give Obama more leverage to appoint a new justice.

“Her window was last summer,” he said. “If she were to resign now, there’s very little chance Obama could get someone as progressive as she is through the Senate in the coming months.”

Jim Dean, the chairman of Democracy for America, disagreed with some of his allies. He said Ginsburg should stay put to serve as a counterbalance to conservative justices such as Antonin Scalia. 

“If she’s up to it and it’s really her decision, I would like to see her stay on,” he said. “It’s her experience with dealing with these five other people on the court.”

But other liberals worry that, unless she is someday replaced by a strong progressive voice, there will be little counterweight to the court’s outspoken conservative voices. 

Journalist Ezra Klein, who has a strong following among progressives, noted the recent decisions “are a reminder that the 2014 election could prove one of the most important in decades.”

Democrats were dismayed last week by another 5-4 decision in which the court ruled that home healthcare workers could not be required to pay union fees if they do not belong to a union.

In April, the five conservative members of the court outraged liberals by striking down aggregate limits on campaign contributions to candidates and political parties.

Vulnerable Senate Democratic incumbents and challengers have seized on the court’s Hobby Lobby decision to pressure their opponents, and keeping the court’s fate in Democratic hands could prove a strong rallying cry for the base. 

Lux said Democrats will be able to argue to voters that they should keep control of the Senate to keep the Supreme Court from shifting further to the right.

“The court has now issued a set of rulings that is so consistently extreme on so many different issues, especially economic issues, that I think their obvious radical conservatism has made them much more of a flash point,” he said. “In terms of the base Democratic vote, we will be able to talk about the court in a way that people can understand.”