Notorious
Today is Ruth Bader Ginsburg's 86th birthday. She's not just another Supreme Court Justice. She's a superstar. People cheer her name (or initials). People wear her likeness. Movies are made about her life.
Why didn't she quit? I don't know, but my main guess is it's the best job in the world, so why leave? Even if she were planning a strategic resignation, perhaps she was waiting for the first female president to choose her replacement. Hillary Clinton seemed to be a likely winner for 2008, and even more likely for 2016, so why not wait?
It's strange this is what we've come to. Justices used to retire when they felt it was time, and the Senate would usually vote them in regardless of politics. Now Justices wait to retire till the party they support (and yes, they do support parties) is in power, and nominees only get through when their party runs the Senate.
At least this has been the pattern for the last four Presidents. Clinton, Bush, Obama and Trump have this one thing in common--all have gotten two nominees onto the Supreme Court and all did it with a majority in the Senate. (Obama had a chance to replace a conservative with a liberal, but since the GOP were running the Senate at the time, they didn't even hold a vote.)
It certainly didn't use to be this way. Two of our most liberal Justices, Brennan and Marshall, retired when a Republican, George H. W. Bush, was in office. (Their replacements, respectively, were David Souter and Clarence Thomas.)
It does make you wonder what the Democrats will do if RBG is replaced by a conservative. If they get in power, will they attempt to impeach a conservative Justice? Will they try pass a court packing plan? Or can we somehow go back to the old days when the Court wasn't as important as the legislature in getting things you wanted?
posted by LAGuy @ 8:30 AM
6 Comments:
...the old days when the Court wasn't as important as the legislature in getting things you wanted?
When was this?
Pretty much always until modern times. Sure, the Court decided some major controversies, but most stuff was done by the non-least dangerous branches.
To Anon: If the Supreme Court was always so important, how come candidates never ran on the issue? How come Presidents gave much less care to who they picked, with Republicans sometimes picking the biggest liberals? How was it that before 1965 most court nominees went through the process quickly and were confirmed by a voice vote of the Senate?
There is no going back. I went to a presentation by Gregg Nunziata, U. of Chicago Law '01 (after our time), and he despaired of a return to the less political nomination process. He previously served as chief nominations counsel to the Senate Judiciary Committee during the nominations of, among others, Roberts and Alito.
He did point out that politics have always played a role in the process, relating the story of one of George Washington's nominees who, because he was a Southern aristocrat, was turned down for the S.Ct, even though he had a distinguished role in the revolution and drafting of the Constitution. The candidate was so distraught at the rejection that he attempted suicide.
Still, things have never been as partisan as they are now, and Nunziata sees no way to return to "normalcy." This is a function of how much is at stake, given the huge differences between the parties, and the ability of the S.Ct in many more cases than ever before to reverse party platform initiatives. At the time, I applauded Roberts use of rather tricky analysis to uphold the ACA. I think he figured that a narrow ruling for the constitutionality of the act would keep it alive just long enough for political winds and other pending cases to take it down. In the meantime, he was demonstrating the impartiality of the S.Ct.
Now I think it was a mistake - the ACA should have been declared an unconstitutional overreach under the Commerce Clause before it could become a fixture in the public's mind. What will Roberts do when the case comes up again, now lacking the tax penalty that rendered the act constitutional before?
Roberts should have declared the ACA unconstitutional because it was. He shouldn't have been worried about how it would play politically, that's not his job. Any Chief Justice who thinks that way deserves to have a Court that no one trusts.
Well, God bless you for admitting it, DG.
As for Roberts, he's working on succeeding RBG. He'll probably rule she isn't dead-unlike that 9th Circuit guy.
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