Diary

Ginsburg's Replacement Opens 50 District Court Seats

AP Photo/Rebecca Gibian

I am old enough to remember when the Supreme Court was evenly split with Sandra Day O’Connor at the center.  Then she was replaced with Samuel Alito, a staunch conservative.  Somehow the court remained ideologically split but now with Kennedy in the center.  Kennedy was replaced with the eccentric conservative Neil Gorsuch and the court was “right-leaning” but somehow still ideologically split with John Roberts at the center.  Note to the world – if replacing the “centrist” with a conservative leaves an ideologically split court it wasn’t ideologically split previously.  Now is the opportunity to replace Ruth Bader Ginsburg with a staunch conservative.  If Ginsburg is replaced with someone like Amy Coney Barrett you would have a left to right order something like:

Sotomayor(66) Kagan(60) Breyer(82) Roberts(65) Kavanaugh(55) Gorsuch(53) Barrett(48) Alito(70) Thomas(72)

The reality of this split is that Roberts would no longer be the center of the ideological spectrum, that spot would be split between Kavanaugh and Gorsuch.  Any leftist ruling would have to include both Roberts and one of the 5 conservatives.  Remember that the latest LGBT ruling included Gorsuch but not Roberts.  Apparently Roberts doesn’t get down with the whole gay sex thing.  With Ginsburg replaced by Barrett a 5-4 decision would land Roberts in the minority – the wrong side.  However, Roberts hates being on the wrong side and loves stare decisis.  I expect those potentially 5-4 rulings that would be written by Thomas or Alito (the most senior conservatives) would instead be 6-3 written by Roberts.  The only way for the court to be switched back to an “ideologically split” court would be for at least Thomas, but possibly Thomas and Alito both being replaced by leftist judges.  The reality is that both judges are in their 70’s, not their 80’s.  I suspect that both look at the world and plan on being replaced not by Trump, but by the next conservative president in 12-16 years.  That means for at least the next 12 years, but depending on who replaces Alito, Thomas, and Breyer possibly 30 years the Supreme Court will be conservative.

Additionally, 7 of the 13 circuit courts are in conservative hands.  The way the 9th operates it is in conservative hands about half the time now, so the real total is 7.5 of 13, or ~58% of the courts.  With a 30 year conservative Supreme Court there is a decent chance that some of the 31 Circuit Justices appointed by Bill Clinton will retire.  If so that doesn’t change many of the Appeals courts, but could move the 9th to a solid conservative majority.  Additionally some of the 56 District Judges appointed by Bill Clinton that are still serving would likely retire or take Senior status.

If Donald J. Trump is reelected and the Senate remains in Republican hands it is well within the realm of possibility that Republican nominees will hold 400 of 678 District Court seats, 8 or 9 of the 13 Appeals Courts, and 130 of 179 Appellate Court seats.

Ginsburg’s seat must be filled, and filled quickly.  Then we have got to hold onto the leverage we have to manage the wave of retirements that are sure to follow.