Justice Ruth Bader Ginsburg does not plan to leave the Supreme Court anytime soon, and, as she tells Elle‘s Jessica Weisberg, that’s because the Senate is terrible:
[Weisberg]: I’m not sure how to ask this, but a lot of people who admire and respect you wonder if you’ll resign while President Obama is in office.
[Ginsburg]: Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate …] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided. As long as I can do the job full steam…. I think I’ll recognize when the time comes that I can’t any longer. But now I can.
Justice Ginsburg’s frustration with the Senate is not particularly surprising. Last year, Ginsburg said that the Senate’s bitter confirmation process is “destroying the United States’ reputation in the world as a beacon of democracy,” and she complained in 2011 that if she were nominated to the Supreme Court today “my ACLU connection would probably disqualify me.”
Prior to her elevation to the bench, Ginsburg led the ACLU’s Women’s Rights Project, where she orchestrated much of the legal strategy that led to the Supreme Court recognizing that governmental discrimination against women is unconstitutional. Indeed, Ginsburg was arguably the single most significant women’s rights attorney in American history even before she became a judge.
The particular problem Ginsburg cites, however, the fact that Supreme Court nominees can still be filibustered by a minority of the Senate, can be solved by a bare majority of the Senate at any time. When the Senate invoked the so-called “nuclear option” last November to eliminate the filibuster for most nominations, they invoked a process which effectively amended the Senate’s rules by a simple majority vote. Nothing prevents the Senate from using this process again to permit Supreme Court nominees to be confirmed by a simple majority if a majority of the Senate wished to make this change.