Here’s the question swirling through the blogosphere today: Should Justice Ruth Bader Ginsburg resign now — because if she dies under a Republican president, it will be a disaster for every ideal she fights for?
The question was teed up on the WSJ Law Blog this morning after an AP report noted that some liberals were “clamoring” for her resignation (and that of Stephen Breyer, to a lesser extent), just in case Obama loses in 2012.
You can see why liberals are nervous. The Court already has a 5 – 4 conservative majority (if you really think Justice Anthony Kennedy is a “swing” vote, you’re a Republican who likes to pretend to be an independent). Justice Ginsburg has had health problems, and some are not confident that she’ll last until 2016 — and it’s unlikely that either the 78-year-old RBG or the 72-year-old Breyer would make it to 2020, if a two-term Republican president is on the horizon.
The stakes couldn’t be higher. Which is why I think my answer is going to surprise people…
Justices Ginsburg and Breyer should not resign before the election. They should hang on. The threat of them “not making it” through a Republican administration should be front and center as an election issue.
Guess what? Most Americans support a woman’s right to choose. Independents are not motivated to vote on the issue because they assume it to be a right that will always be there. They don’t understand that it’s constantly under attack.
And when did we get to have that national debate about Citizens United? Oh, that’s right, we never did.
I mean, have you seen the kind of crap Americans get distracted by during elections? I’d like to see Obama and whomever he’s running against make the point that the next president might appoint two or three SCOTUS justices that could shift the balance of power. I’d like people to know how important that is, and I’d like to bring it to a vote. If it were me, I’d find the most frail-looking picture of RBG I could find and slap it up in a campaign ad under the text, “Your rights depend on her health.”
And let the 2012 election be about that as much as anything else.
Besides, there’s no guarantee that Ginsburg is going to die in the next five years. And this close to the election, there’s no guarantee that Obama could get somebody half as progressive as Ginsburg confirmed. A few more years of RBG and rolling the dice on an election might be a lot better than 35 years of whatever “moderate” Obama could find to replace her.
“We Love You, Ruth, But Could You Kindly Step Aside” [WSJ Law Blog]