MIght As Well Hang On

In an op-ed in the Los Angeles Times, Law school dean Erwin Chemerinsky argues that 81-year-old Associate Justice Ruth  Bader Ginsburg should step down from the Supreme Court to permit President Barack Obama to nominate her successor and preserve the five-member working majority on several issues. He writes

...there is a distinct possibility that Democrats will not keep the Senate in the November 2014 elections. The current Senate has 53 Democrats, two independents who vote with the Democrats and 45 Republicans. But in the November 2014 elections, Republicans have a far greater likelihood of gaining seats in the Senate than the Democrats. One recent study identified nine seats held by Democrats that could be won by Republicans, but only two seats occupied by Republicans that might be taken by Democrats.

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 position.

Among the reasons Democrats didn't filibuster the nominations of Thomas and Alito is that Democrats rarely do such things- it would be oh, so rude, and they'd fear Republicans would do the same against a Democratic nominee.

But of course, the GOP would filibuster a Supreme Court nomination by a Democratic president, whatever the Democratic approach to Repub nominees, and they'd be unlikely to accept any replacement for Ginsburg. Steve M. explains

But what will they be objecting to? Oh, they'll find something. In Obama's first term, a somewhat less rabid GOP chose not to filibuster his previous picks, but the current, more radicalized GOP could easily have declared either of them beyond the pale, with Fox and talk radio as an amen chorus. Elena Kagan was denounced as "anti-Second Amendment" by the likes of RedState and (writing for Fox News) John Lott ("A Vote for Kagan Is a Vote to Take Away Your Guns"). Sonia Sotomayor was criticized for not accepting white firefighters' claims of reverse discrimination in Ricci v. DeStefano, as well as for saying in a speech, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." Kagan and Sotomayor had spent their careers largely avoiding the sorts of controversies that could block their ascent, yet even they had one or two questionable items in their histories. What future appointee wouldn't? The difference is that now the GOP is out for blood.

Out for blood, indeed.  Among the items the extreme conservatives and the more-extreme conservatives agree upon is that, having picked up the House by reflexively opposing Barack Obama and his initiatives, their path to control of the Senate and possibly the presidency is by making sure nothing positive comes about in this administration. (The path to a majority certainly doesn't lie with demographics.)  

Evidence abounds. A few years ago the conviction of Mumia Abu-Jamal for killing a Philadelphia police officer was set aside in favor of life imprisonment.  Recently, the President nominated to head the Civil Rights Division of the Justice Department Debo Adegbile, who "did contribute to the filing of a 2009 court brief that argued that Abu-Jamal faced a discriminatory jury- an appeal later to have found merit by a judge. Repub senators who a month earlier couldn't spell J-a-m-a-l suddenly were incensed about Adegbile's limited work on behalf of the defendant and voted unanimously to kill the nomination.  Performing effectively their role as stenographers for the GOP, media outlets typically labeled Democratic senators as largely responsible for the defeat, which they misinterpreted as righteous indignation over the Abu-Jamal case.

And now the President's nomination of Dr. Vivek Murthy to be Surgeon General is endangered because he once tweeted "tired of politicians playing politics w/guns, putting lives at risk b/c they're scared of NRA. Guns are a health care issue." Appalled that Murthy has recommended doctors discuss gun safety with their patients, the NRA last month wrote Majority Leader Reid and Minority Leader McConnell

Dr. Murthy’s record of political activism in support of radical gun control measures raises significant concerns about his ability to objectively examine issues pertinent to America’s 100 million firearm owners and the likelihood that he would use the office of the Surgeon General to further his preexisting campaign against gun ownership.

In the first year (ending in 12/13)  following the shooting rampage at Sandy Hook elementary school in Newtown, Connecticut, approximately 194 children were killed by a spontaneous eruption (obviously not a public health problem) and roughly 127 of them in their own home, according to these graphs from Mother Jones (via Addicting Info):

Murthy's advocacy is among what Republican Senator Lamar Alexander of Tennessee refers to as "political credential."  And remember:  Lamar Alexander is one of those Republicans the media likes to call moderate- no fire-breathing radical like Ted Cruz or Mike Lee, and not like the Idaho senators Risch and Crapo, or Oklahomans Inhofe and Coburn, Mike Johanns of Nebraska, Tea Party Johnson of Wisconsin, or any one of the other far, far right GOP senators.  But he is an extremist, or at least one willing to talk and vote like one when it really matters, and on board with the GOP no good can come from Obama approach.  (If it looks like a duck, swims like a duck, and quacks like a duck...) And if Ruth Bader Ginsburg chooses to retire (which she's reportedly resisting), there is little likelihood this President could get anyone approved in her place who is to the left of Mitt Romney.

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