A great deal turns on who picks Ginsburg's successor. There are, for example, four likely votes to overturn Roe vs. Wade on the current court: Chief Justice
But if a conservative had been occupying Ginsburg's seat when the court heard those cases, the rulings might well have been very different, and if a conservative takes her seat when she leaves, they might not survive.
There likely will be many calls, publicly and privately, for Justice Ginsburg to resign before President Obama leaves the
Moreover, there is a distinct possibility that Democrats will not keep the
So long as the Democrats control the Senate, President Obama can have virtually anyone he wants confirmed for the Supreme Court. There has been only one filibuster against a Supreme Court nominee, and that was to block Justice Abe Fortas' elevation to chief justice, not to block his initial appointment. There were 48 votes against Thomas and 42 against Alito, but Democrats filibustered neither. Besides, if Democrats have control of the Senate, they could change the rules to eliminate the filibuster for Supreme Court nominees, just as they did for lower federal court judges and presidential appointments to executive positions.
In the end, the only way to ensure that President Obama can pick someone who will carry on in Justice Ginsburg's tradition is for the vacancy to occur this summer. Indeed, Justice
Some might question whether a justice should be so calculating in choosing when to retire. But not doing so ignores the reality that ideology matters enormously in Supreme Court decision-making. This is nothing new; ideology always has mattered, and which president fills vacancies on the court can have an impact for decades. If, for example,
I do not minimize how hard it will be for Justice Ginsburg to step down from a job that she loves and has done so well since 1993. But the best way for her to advance all the things she has spent her life working for is to ensure that a Democratic president picks her successor. The way to facilitate that is for her to resign this summer.