Elections have consequences

CBS (meme):

Even before today’s sobering news that Supreme Court Justice Ruth Bader Ginsburg is being treated for pancreatic cancer in a New York hospital, the only woman currently on the court had been routinely listed by court watchers as a likely candidate to retire from her lifetime appointment sooner rather than later.

Her age (she is 75), past health scares (she was treated for colon cancer a decade ago) and more recently the ascension of a Democratic president and Senate served to fuel that speculation. And now this. The Supreme Court announced that she will be hospitalized for a week to ten days but the legal and political ripples caused by her illness are likely to splash around the nation’s legal system for weeks and months and years to come.

Before the sun sets today, indeed, between the time that I write this and the time it is posted online, there will be published and posted here, there and everywhere lists of potential Supreme Court candidates who would replace Justice Ginsburg should she retire or become too ill to serve. I refuse to go down that premature path except to say that there are many qualified candidates, including many brilliant women, who ought to be considered first to replace the second woman ever to serve on the High Court.

As it now stands, the departure of Ginsburg from the Court probably wouldn’t change its ideological dynamic very much. President Obama likely would select someone who would vote as Justice Ginsburg has; that is to say in a consistently “liberal” or “moderate” way against the expansion of capital punishment, against the restriction of abortion rights and with great suspicion toward the aggrandizement of executive branch authority and corporate protections.

If she were to retire, and be replaced by an ideological clone, we’d be seeing the liberal version of the Rehnquist-for-Roberts trade we saw a few years ago.

In other words, a Ginsburg retirement now would not be an earth-mover in the larger scheme of Supreme Court power. But let’s chew, law school style, on a hypothetical. Think about what a monumental story we would now have if John McCain were president. In that scenario, a Ginsburg departure from the Court, and the concomitant conservative successor who would arrive there under a McCain Administration, would reverse many of the Court’s recent 5-4 votes.

Conservative-moderate Justice Anthony Kennedy would no longer be the swing vote and the Court’s liberal wing would be down to three. The uneasy balance of power between right and left that currently exists on the Court would be gone for quite some time. This will not happen. But the thought of it—good or bad, depending upon your view—is yet another reason for us to remember how and why elections matter.

I wish her well, but she looks headed for retirement given the circumstances.

If Ginsburg were replaced by McCain conservatives would be on top 5-3, but with Obama's appointment it stays 4-4. I'm comfortable with Kennedy's moderate conservatism remaining the middle swing vote.