The confirmation of Neil Gorsuch to the United States Supreme Court represents a huge political victory for Majority Leader Mitch McConnell who gambled on blocking the nomination of Merrick Garland in the hopes of a GOP electoral victory.
It may also have been an equally huge loss for the of Justice Ruth Bader Ginsburg, who ignored increasing calls for her retirement during the Obama administration to avoid the prospect of the flipping of her seat from a liberal to a conservative member. That gamble — whatever calculation — could now cost a sweeping number of key cases hanging by a 5-4 margin, including much of the precedent built around Roe v. Wade, if not an outright overturning of that decision.Some of the smartest people can stay too long in a game on the assumption that they can gain more with time. Even Sir Isaac Newton was virtually wiped out by such a gamble. Newton invested heavily in the South Sea Company, which was granted a monopoly on trade in the South Seas. The payoff was initially huge as shares continued to rise. Newton made a lot of money and cashed out.
However, with shares still rising, he then tripled down — buying even more stock at three times the original costs. He stayed too long when some were questioning whether the rise was illusory and unsustainable. Then came the crash and Newton’s stock fell faster than his proverbial apple. He lost a fortune for the time £20,000 — virtually the entirety of his estate.
Various advocates suggested for years that Ginsburg might be staying too long on the Court. Those suggestions became more and more blunt as Obama’s second term progressed. What began as polite suggestions that it “might be time to leave” became more and more pointed, if not panicked, in the last two years of the Obama term. Recently, CNN’s Chris Cuomo put it in the most vivid terms and asked a senator, now that Trump is president, “What if Ruth Bader Ginsburg runs out of gas?”
At 84, “running out of gas” was obviously not a reference to the danger of creeping fatigue. For Ginsburg, of course, it was always a difficult decision. After all, she remains intellectually active and fully engaged on the Court. Her opinions continue to be powerful and probing treatments of the law. The precedent at risk is in no small degree precedent of her making. Yet, many justices time their retirements with an eye to who would appoint their replacements. Some have admitted that they try to engineer an appointment by one party or the other to preserve the balance of the Court.
Had Ginsburg retired early in the second Obama term, it is likely that her seat would have been filled even by a Republican-controlled Senate. Any resistance would likely have been further reduced with the second vacancy left by the death of Antonin Scalia. While Scalia’s seat may have stayed open, it is likely that Ginsburg’s would have been filled.