Howard J. Bashman
Howard J. Bashman ()

The U.S. Supreme Court currently has a 5-4 conservative majority on many politically and socially controversial issues, and the court may only be one additional conservative vote away from approving significant limitations on abortion rights. As a result, a number of liberal commentators have begun to clamor for Justice Ruth Bader Ginsburg to retire from the court at the end of this term, before midterm elections to the U.S. Senate occur this fall, when the number of Senate seats held by Democrats may decrease.

If Republicans gain additional Senate seats come next year, President Obama may no longer have the same ability that he now has to obtain the confirmation of an especially liberal nominee to replace Ginsburg. Yet, regardless of what happens in the midterm elections, Obama will remain in office through early 2017. He has already achieved success in obtaining the confirmation of his first two nominees to the high court, Sonia Sotomayor and Elena Kagan. Both of these new justices, as expected, have begun to compile liberal voting records on the court.

Ginsburg is undoubtedly sensitive to the fact that the endurance of her legacy may depend to a large degree on the existence of a Democratic president who will nominate and obtain the confirmation of a suitably liberal replacement once she decides to retire from the court. However, those pundits who are calling on Ginsburg to retire at the end of the court’s current term are probably taking too dim of a view of Obama’s ability to confirm a liberal replacement justice during the summer of 2015 should Ginsburg decide to retire then.

It does not seem realistic to me that Republican senators would be able to prevent Obama from replacing Ginsburg with another liberal justice if Ginsburg waits until the summer of 2015 to retire. There are several reasons for my view. First, as president, Obama is certainly entitled to nominate a justice whose overall views are aligned with his own. Second, and perhaps more importantly, Ginsburg’s replacement, if he or she shares Ginsburg’s liberal views, will not alter the balance of power on the court on those controversial issues that people tend to care the most about. Although replacing Ginsburg with an anti-abortion justice nominated by a Republican president likely would alter the outcome in many abortion cases, there is zero likelihood that Obama would ever nominate a justice who did not support a woman’s right to choose.

Furthermore, if Ginsburg is hoping to stay on the court for at least another three years, until the summer of 2017, there is a reasonable possibility that the president who follows Obama into office will be Hillary Rodham Clinton. Ginsburg will be 84 when the next president is scheduled to take office. As a women’s rights pioneer, it is not outside the realm of the possible that Ginsburg might want to serve on the court long enough to provide the nation’s first female president with her first Supreme Court vacancy to fill.

Of course, it is next to impossible to predict with any certainty at this time who will become president in 2017. What is clear is that by the summer of 2016, with only several months remaining in office, Republican senators would try their best to prevent Obama from replacing Ginsburg with someone considered equally liberal. Thus, the choice realistically facing Ginsburg is between either retiring this summer or next summer or staying on the court at least through the summer of 2017, in the hope that the next president will also be a Democrat.

Similar considerations may also influence the retirement plans of more conservative justices. For example, Justice Antonin Scalia is only three years younger than Ginsburg, and thus the election of a Democratic successor to Obama may cause Scalia to want to remain on the court until he is 85 or 89 years old, when it will be possible for a Republican to reassume the presidency.

The strategic difficulty facing Ginsburg will be that by July 2015 it may be no easier than it is now to predict which political party is likely to capture the presidency in November 2016. Thus, by the summer of 2015, Ginsburg may feel great pressure, not only externally but also from within, to retire and thereby ensure that a Democratic president will get to nominate her successor.

Yet if Ginsburg does not retire in the summer of 2015, she will be signaling confidence not only in her own ability to serve another two years on the court but also in the ability of the Democratic Party to retain the presidency in November 2016.

In my view, the most likely result is that Ginsburg will decide to retire in the summer of 2015. That would still enable Obama to nominate a similarly liberal replacement and obtain the confirmation of that replacement even if Republicans then have more votes in the U.S. Senate than they now have. But, if Ginsburg does not retire by the summer of 2015, then I would expect her to remain on the court until the summer of 2017, in the hope that the Democratic Party will retain the presidency in November 2016. Staying on the court for at least one more year, until the summer of 2015, would also give the newest crop of Obama appointees to the federal appellate courts sufficient time to develop a track record that may establish some of them as possible worthy successors to Ginsburg.

It may seem cynical to suggest that justices would time their retirement from the court based on who will appoint their successors or which political party controls the White House and the Senate. Yet, for better or worse, this is the reality that flows from the important role that the Supreme Court plays in determining the outcome of many of the most politically and socially charged issues of our time.

Ginsburg undoubtedly knows this better than anyone, and thus liberal pundits should remain confident that she will seek to time her retirement to ensure that the justice who replaces her shares the same liberal views that Ginsburg has worked tirelessly to support during her long and distinguished career.

Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., and can be reached at 215-830-1458 and at hjb@hjbashman.com. You can access his appellate blog at http://howappealing.law.com and via Twitter @howappealing.