#i'm just angry that i'm living under the thumb of an unchecked right wing extremist court and it didn't have to happen

[thebreakfastgenie]

Some man on twitter took the opportunity of someone literally celebrating Ruth Bader Ginsburg's 90th birthday to push the "Ginsburg should have retired and this is her/Democrats' fault" line and unfortunately I have some time on my hands so you're getting this rant from me again.

First and foremost, putting the blame on a dead woman when there is a living man who is more directly responsible for losing control of the Supreme Court is profoundly stupid and while I doubt it's consciously misogynistic it does reflect a society that holds women responsible for everything.

I don't know how many times I can say this, but we didn't lose the court in 2020, we lost it in 2018 when Anthony Kennedy retired and Brett Kavanaugh was confirmed. A 6-3 conservative majority is certainly worse, but the Dobbs decision, for example, would have been the same.

You don't get to blame Democrats or Ruth Bader Ginsburg for the fact that you dismissed the importance of the Supreme Court in 2016. Whatever you think should have been done in 2014, you knew what the reality was in 2016. There was already an open seat on the Supreme Court during that election.

If Hillary Clinton had won in 2016, Antonin Scalia would have been replaced by a liberal justice, likely Merrick Garland, and Ruth Bader Ginsburg would have been replaced by another liberal justice. Anthony Kennedy would either have remained in his seat or been replaced by a moderate or liberal justice. The tentative 5-4 liberal majority we had prior to 2016 would have become a tentative 6-3 majority with a solid 5 liberal votes. This Supreme Court would not have overturned Roe and would not be threatening policies like student loan forgiveness and affirmative action. That is the court we would have if 50,000 people in three states had voted for Hillary Clinton.

Instead, Donald Trump appointed three Supreme Court Justices and there is a solid 6-3 conservative majority that will continue handing down horrible decisions that are nakedly political and barely even bother with constitutional justification. At the moment we're basically waiting for a couple of them to die and hoping there is a Democratic president and senate when it happens.

I think the position that Ginsburg should have retired in 2014 is heavily influenced by hindsight, but even accepting that it was a good idea, it's not as simple as people who began believing it in 2020 make it sound. First of all, I cite 2014 because Democrats lost control of the senate that year. This argument relies on Democrats seeing that loss coming. Even if they could do that, Democrats did not have filibuster-proof majority in the senate in 2014. At the time, senate rules required such a majority for supreme court confirmations. Harry Reid had only recently changed the rules to allow all other federal judicial nominations to be confirmed with a simple majority.

It's easy to forget now, but the level of Republican obstructionism during the Obama administration was unexpected. The rule change came about because there were so many judicial vacancies. Unfortunately, not all of them were filled even after the rule change, which allowed a number of Republican appointments during the Trump administration. I didn't have a position on senate rules in 2012-14 because I was in high school, but my position now is that I support ending the filibuster.

I think it's very clear that Republicans will simply change the rules to benefit themselves anyway the second they have power, so Democrats are not gaining anything by preserving the filibuster. However, I reached this position with the benefit of having observed Mitch McConnell's actions as Majority Leader between 2015 and 2019. Democrats in 2012-14 did not have that benefit. I don't know how predictable this Republican behavior was, but it's certainly not the same as having observed something that already happened. If Mitch McConnell had not already changed the rule for Supreme Court confirmations in 2017 in order to confirm Neil Gorsuch, I would have urged Democrats to do it in order to confirm Ketanji Brown Jackson. But I don't know if it's fair to expect Democrats to have done so in 2014.

It's also worth remembering that the open politicization of the Supreme Court is fairly recent. It's been obviously political at least since the 1980s, but for quite a long time both parties kept up a pretense that it wasn't. It's easy to see why Democrats might not have expected Republicans to keep a seat open for an entire year rather than even give a Democratic nominee a hearing.

I think "in hindsight, things would be better if Ruth Bader Ginsburg had retired in 2014 and Harry Reid had changed the senate rules so Democrats could confirm a replacement" is a reasonable take. But it's academic. There's no point in assigning blame. And Democrats clearly did learn from this, because Stephen Breyer retired and was replaced by Ketanji Brown Jackson.

And, once again, whatever you think should have happened in 2014, we all went into 2016 knowing exactly what did and did not happen. Few people were saying Ginsburg should have retired at that time, and even those who were would not have been justified in not voting for Hillary Clinton, or discouraging others from supporting her, or downplaying the importance of the Supreme Court.