Ian Millhiser, a radical left columnist who writes for Vox, is recommending that Associate Supreme Court Justices Sonia Sotomayer and Elena Kagan step down in the next two years to give Joe Biden and the Democratic Senate the opportunity to name their replacements.
What Millhiser and many on the left don’t want is a repeat of what happened in the matter of Justice Ruth Bader Ginsberg. RBG was a two-time cancer survivor and in her 80s the last two years of Barack Obama’s presidency, and many partisans were urging her to step down then in order to give President Obama the opportunity to name her replacement.
Instead, Donald Trump was able to name three justices who eventually overturned Roe v. Wade, giving states the power to regulate abortion. There have also been several other decisions the left has found objectionable from a court that is now heavily tilted to the right.
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Millhiser is trying to make the point that the left could be forced to live with a 7-2 or even an 8-1 Supreme Court if Biden can’t lock in younger replacements for Sotomayer and Kagan.
The reason is that the Senate electoral map is going to create a disaster for Democrats in 2024 and perhaps all the way through to 2030 or 2032.
Of the 34 seats that are up for reelection in 2024, Democrats are defending 23 — including the seats of two independents who caucus with Democrats. Three of those seats are particularly ripe for the GOP, given they’re in states that favored Trump by at least eight points in 2020: Montana, Ohio and West Virginia.
But even beyond that, the opportunities are extensive for Republicans. Of the six states Biden won by less than three percentage points in 2020, Democrats have to defend seats in five of them.
Millhiser complains bitterly about GOP gamesmanship which, considering the stakes, was about as “hardball” as hardball politics gets.
Senate Republicans have made it perfectly clear that they view Supreme Court seats as a political prize that goes to the party that controls both the White House and the Senate. In 2016, when Justice Antonin Scalia’s death created a Supreme Court vacancy during Obama’s final year in office, Republicans invented a new rule claiming that a vacancy that opens in an election year should be filled by the “next president.” They abandoned that made-up rule as soon as it was inconvenient for them, racing to confirm Trump nominee Amy Coney Barrett the week before voters cast Trump out of office.
Yes, it was dirty pool — exactly what the Democrats would have done if the roles were reversed. And yes, Supreme Court seats are, indeed, a “political prize” — which is exactly how the Democrats treated the Supreme Court from the time of FDR.
Does Millhiser think that Bill Clinton considered “balance” when he appointed Ruth Bader Ginsberg to the court? Clinton nominated one of the most left-wing judges in American history as a political favor to the far left of the Democratic Party. Ginsberg’s life story, as impressive and praiseworthy as it is, did not make her a superior Supreme Court justice.
Neither side is above playing politics with Supreme Court justice nominations.
Politics does not exist in a vacuum. It’s a basic law of politics (physics, too) that for every action, there is an equal and opposite reaction. Democrats had their way with the Supreme Court for more than a generation, and now some welcome corrections are in order.
There’s even support on the left for at least some of the current court’s focus. How many left-wing legal pundits reluctantly agreed that Roe was a terrible decision that never should have been handed down? There are plenty of arguments that the Supreme Court overreached on many decisions, including race-based admissions and employment standards. That, too, has been criticized by some left-wing legal experts.
What Mr. Millhiser refuses to recognize is that there are 320 million people in America and a sizable chunk of them disagree with his legal outlook. Perhaps dialing down the partisanship would make things a little clearer for him.
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