Supreme Court justices are, in one sense, like three-year-olds. No one tells them what to do. So, when calls come for a justice to retire, as they are beginning to, yet again, for 80-year-old Ruth Bader Ginsburg, don't expect her to listen—or care. But there are very real factors that make this time different, and that make the case for the Court's reigning progressive champion to consider, finally, stepping down. Call it another unforeseen consequence of Obamacare.
The botched rollout of the Affordable Care Act has placed the Democratic Senate majority in jeopardy in a way it hasn't been up till now. A CNN poll released last week showed a massive shift in public attitudes, with respondents favoring the GOP over Democrats on a generic congressional ballot. Just a month earlier, before the frenzy over the debut of the star-crossed enrollment website, Democrats held an 8-point advantage on the generic ballot. That has vaporized.
Admittedly, the GOP still has a thorny path to claim Senate control, essentially needing to gain a net six seats. Most analysts believe they will fall short—and instead likely will edge the chamber closer to a 50-50 split. Even so, the Obamacare furor has made a flip less of a long shot than it was.
And with any shift in the balance of power comes a corresponding shift in White House strategy should Ginsburg choose to step down. The justice has signaled she would like to retire while a Democrat is president. Right now, the party, with the help of two independents, holds 55 Senate seats. After next year, that number could drop to 52 or even lower, perhaps even below a majority. If Ginsburg's hope is to have a true-blue liberal, or a history-making nominee, take her place, she should announce her retirement—and sooner rather than later, to give the president as much time as possible to secure her successor.
Remember, Ginsburg isn't just any justice. She's a trailblazer, the Court's first liberal female jurist, a former ACLU lawyer who has dedicated her career to fighting for feminist and progressive causes. More than most justices, she has built a legacy, through her work before joining the high court and during her 20-year tenure on it.
If the president wants to select a progressive to succeed her, he would be wise to do it when he has maximum leverage in the Senate. The greater the number of Republicans in the chamber, the greater the chance of a filibuster—and that has never been truer than now. While a filibuster has never been used to keep a justice off the Supreme Court, Majority Leader Harry Reid changed the game last month when he invoked the "nuclear option" to eliminate its use for lower-court nominees. His move dramatically raised the possibility the GOP will seek to pick a fight with a high-court choice it deems too left-leaning. "Now would be the time, if that's going to happen," says Christopher Schroeder, a former high-ranking Obama Justice Department official who was involved in selecting judicial nominees.