Bernstein: Justices Ginsburg, Breyer Should Retire While Dems Still in Power

Republicans won a nice victory in the Florida special congressional election on Tuesday, which the more gullible and/or excitable pundits are already overhyping.

But via e-mail, I received a reminder that Democrats should be rooting for an audience of two to be similarly over-interpreting the results: Supreme Court Justices Stephen Breyer and Ruth Bader Ginsburg. If the justices previously believed it a safe bet that they would be replaced by mainstream liberal justices when they retire, perhaps now they'll realize their only reasonable course of action is to retire this spring, pending confirmed replacements.

What Ginsburg and Breyer want, of course, is up to them. If their goal is to serve on the court as long as possible, then they should stay. Both, I should note, seem to be at the top of their games. Breyer, 75, and Ginsburg, who will turn 81 this week, might have a dozen or more years to go.

Yet there is simply no way of knowing whether Democrats will maintain a majority in the next Senate, or the one after that. There's also no way of knowing when the next Democratic presidential victory might be.

Yes, some Democrats (and perhaps some pessimistic Republicans) have convinced themselves that Democrats now have a demographic or electoral college lock on the White House, but that's hooey. At best, Democrats have a very slim edge, one that could easily be swamped by the normal ebbs and flows of events, or disappear just as rapidly as it emerged.

If Republicans win a Senate majority in 2014, there's no guarantee they'll confirm anyone, no matter how moderate, to the Supreme Court during the Kenyan socialist's final two years. Any Republican nominee for the court will be as Federalist-society solid as John Roberts or Samuel Alito.

Of course, that doesn't mean future justices will be perfectly predictable on every issue and case; the Supremes don't work like that. But overall, a court in which Breyer and Ginsburg are replaced by nominees from any conceivable Republican president will be a court that rapidly erases their legacies. There won't be any David Souters in the foreseeable future.

Ginsburg and Breyer might not prefer a Supreme Court that is highly partisan and ideologically divided, in which retirements are strategic moves. But that's the court they've got. If they care about the principles they've fought for, they should retire in time for confirmation battles this year.

Jonathan Bernstein covers U.S. politics for Bloomberg View. Follow him on Twitter at @JBPlainblog. Contact him at [email protected].