With more and more senators and congressmen heading for the exits, it’s a good question how this will affect two other possible retirements from the Washington stage: those of Justices John Paul Stevens and Ruth Bader Ginsburg. Stevens will soon be 90 and has not hired his usual quota of clerks for next year — traditionally a sign of impending retirement. Justice Ginsburg (who will be 77 next month) has not been in good health in recent years, having had two bouts with cancer.
But if they retire at the close of the current term, in late June, will President Obama be able to get his nominees to replace them through the Senate before the election in November? If present trends continue (they usually don’t, of course), that’s unlikely. The more probable a Republican landslide in November comes to seem, the more probable is a Republican filibuster to prevent liberal replacements for these liberal justices.
In 1968, lame duck Lyndon Johnson tried to get his buddy Justice Abe Fortas raised to the chief justiceship upon Earl Warren’s retirement. Although Republicans were in the minority, they and their Dixiecrat allies were able to block Fortas. And Warren stayed on as chief justice, as it appeared that, with a likely impending Republican victory in November, no Johnson nominee could be confirmed. The following year, President Nixon nominated the lackluster Warren Burger to replace Warren as chief justice and, when Fortas had to resign in a scandal, ended up nominating Harold Blackmun (author of Roe v. Wade) as his replacement after two failed attempts to nominate Southerners.
If there is a Republican Senate majority next year, President Obama would have no choice but to nominate moderates in order to get them confirmed. Wouldn’t it be a delicious irony if President Obama’s picks had the effect of moving the Court to the right, however incrementally?