Douglas Cohn: Court vacancy will not be an issue if GOP takes Senate

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WASHINGTON — The odds are better than even that the Republicans will take the Senate in November, and if that happens, the Supreme Court should become an issue, but it won’t. Some Democrats think Justice Ginsburg should retire while President Obama is still in the White House, but Ginsburg, 81, has said publicly in a number of interviews that she’s not going anywhere.

That’s the right decision for her personally, and for Democrats politically, because even if she were to resign tomorrow, getting an even moderately progressive justice confirmed in today’s Senate would be a challenge. Democrats control the Senate, but would still need 60 votes to confirm a Supreme Court nomination. Republicans would likely play hard ball and delay action until after November, when they could be in the majority and calling the shots.

Ginsburg has survived two bouts of cancer, and the death of her husband, but she’s tough-minded and has likely gamed out the politics of succession should she decide to step down sometime in 2015 or 2016. If Republicans are in the majority in the Senate, they could just stall for two years, leave the seat vacant, and wait until a new president is elected in 2016.

There are no guarantees for leaders in either party that they will get a president of their liking. Ginsburg has made statements to the effect that she has confidence in whoever is elected to make the right decision when it comes to filling a court vacancy. In other words, she feels no pressure to free up her seat before the 2016 election to ensure a progressive justice is confirmed.

Ginsburg is the most liberal member of the court, and it’s unlikely that Obama or his successor, whatever the timetable, will be able to replace her with someone that matches her intellect and unwavering commitment to progressive principles.

Supreme Court justices have lifetime appointments, and they’re supposed to be above the partisan battle and impartial. But those days are gone, if they ever were here. The Bush v. Gore ruling in 2000 that cut short the recount in Florida and handed the presidency to George W. Bush exposed the political factions on the court.

Today’s court has four conservatives and four liberals who mostly vote along predictable lines on the big issues that confront the court. The lone justice who is seen as more independent, Anthony Kennedy, more often than not sides with the conservatives.

There are more cases challenging Obamacare headed to the court, along with cases involving same sex marriage, affirmative action and reproductive rights. But as voters go to the polls in November, it’s unlikely they’ll be thinking about the Supreme Court when they cast their ballots. It’s a sleeper issue and unlikely to awaken unless some unforeseen development thrusts it into the headlines.

Ginsburg is not going to make the same mistake as Sandra Day O’Connor, appointed by President Reagan in 1981 and the first and only woman on the Court when Ginsburg, appointed by President Clinton, arrived to join her in 1993. O’Connor stepped down in 2005 to better care for her husband, who was suffering from Alzheimer’s disease.

She has said she regrets leaving the court especially since her husband soon had to be placed in a nursing facility, and has since passed away. O’Connor, 84, hears cases on federal appeals courts. It’s her way of staying engaged, together with pressing for more civic education in high schools to prepare students to be good citizens.

With the single exception of her vote in Bush v. Gore, O’Connor has been acclaimed by both parties as an exemplary justice. She occupied that sweet spot in the middle as a swing justice who made the right decisions for the country. Ginsburg, while unapologetically liberal, also enjoys broad respect and has earned the right to step down on her own timetable.

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