Learning from Ginsburg

In the last year of President Obama's tenure, there was much pressure on Justice Ruth Bader Ginsburg to retire.  She had had several bouts of cancer, starting in 1999.  There was concern that, if the worst happened and a Republican was elected in 2016, she would not survive to 2021.  Though she nearly made it, Trump was able to replace her in the days before the election.    Where Bill Clinton and Barack Obama had only seated two justices each in there two-term presidencies, Trump sat 3 in his single term.

With a Republican wave predicted in November, Justice Stephen Breyer has elected to retire from the Supreme Court.  Though President Biden will still be in office for another 3 years, his margin in the Senate is at stake.  Trump was able to get conservative justices by the barest of margins thanks to the change in filibuster rules for judicial nominees and having a majority in the Senate.  Gorsuch (54-45), Kavanaugh (50-48), and Coney Barrett (52-48) would not have been seated if the Republicans didn't hold the Senate.  Trump would have had to nominate more moderate justices.  By that same token, Biden has a shrinking window in which he can place a liberal justice.  Come next year, Biden's nominees will have to satisfy a Republican majority in the Senate, led by Mitch McConnell.  By leaving now, Breyer's replacement is more likely to share his views, rather than have a watered-down version of his views.