Terminology: I have referenced this before, but here's a reminder. The "attitudinal model." Judges are normal politicians dressed in stupid costumes.* They have normal political ideologies, but conceal them in the trappings of "judicial philosophies." Whenever someone describes himself as an "originalist," or as believing that the Constitution is a "living document," that's a bullshit rationalization. They're liberals, moderates, conservatives, and occasionally idiosyncratic politicians who just don't have the integrity to admit what they are. To an attitudinalist, Kennedy is a conservative-leaning moderate, who is vaguely-kinda pro-choice, but mostly leans conservative.
How empirically-grounded is the attitudinal model? It's a model. To quote George E.P. Box, "all models are wrong. Some are useful." Supreme Court justices can be hard to predict. See: Roberts, John, on Obamacare. Scalia was pretty consistent on free speech issues, leading to conservatives getting pissed off at him when he upheld the constitutionality of flag-burning, so yes, you whiny, little liberals, Citizens United was really a consistent ruling from him about free speech. Scalia also had some weird consistency about the Fourth Amendment. Regardless, no Justice is as predictable as you think.
Nevertheless, we usually know how nominees will vote on basic social issues, like abortion. Presidents have gotten very good at vetting to ensure that they'll get someone they like, since Poppy Bush fucked up with that Souter nomination.
And Kennedy knows this. If Kennedy retires now, he'll get someone who disagrees with him on abortion, but who agrees with him on most other stuff. Should he retire? That's a real strategic calculation. And he's smart enough to understand that.
You know who isn't? The dumbest person on the Supreme Court.
That would be Ruth Bader Ginsburg. Let's all take a moment out of our day today to laugh at the Trump-ian stupidity of this woman, and at how deep the consequences of her stupidity could be.
Yes, that's right, the dumbest member of the Supreme Court right now is Ruth Bader Ginsburg, and it isn't close. Now, I could pick on the idiocy of plenty of her opinions (e.g. Citizens United, which you may think you understand, but you don't, unless you are one of my students who took careful notes during one of those lectures, and she doesn't understand it either), but I'm going to focus more on her obliviousness to political reality here. You see, back in 2014, she gave an interview to Elle magazine (the source of all intellectual growth in the world) in which she was asked about the possibility of retirement. Frankly, she showed how low her IQ is when she didn't retire during Obama's first term (she's older than dirt and cancer-prone), but by 2014, not retiring was Darwin Award-level dumbassery. So, how did she explain herself? Well, here's what she said:
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 Democrats] 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.
Let's unpack that, shall we? This was during Obama's second term, with a Democratic Senate majority, post-nuclear option. Harry Reid had already used the nuclear option because Senate Republicans blockaded the DC circuit court.
What the fuck did Ginsburg think would happen if she stepped down? Here's what would have happened. Republicans would have filibustered anyone. Did Ginsburg think that the rule change Reid instituted was, at that point, an ironclad law of physics, unchangeable from then until the end of time such that no further change to Senate rules could ever be made again? Did she seriously not understand that what happened demonstrated precisely that Reid could do exactly the same thing again to confirm anyone? Yes, Republicans would have filibustered anyone had Ginsburg stepped down in 2014. Reid would have been forced to use the nuclear option again. Obama's replacement would have been confirmed. Ginsburg was just too fucking oblivious to do it. Instead, Scalia died with a Republican majority, McConnell blockaded the seat for a whole fucking year on the gamble that a Republican would win in 2016, allowing Trump to nominate plagiarist-Gorsuch under the nuclear option that Ginsburg had her head too far up her own ass to understand was the inevitable thing anyway.
Remember, if Ginsburg's analysis were correct, plagiarist-Gorsuch wouldn't be on the Court because the Democratic filibuster would have blocked him. Ginsburg is an idiot.
So, why didn't Ginsburg step down in 2014? It was that last line. "I think I'll recognize when the time comes that I can't any longer. But now I can." Ginsburg just didn't want to retire. So, she didn't. Let's all laugh at the fucking moron. Maybe she survives the next year and a half, and the Democrats get the Senate in 2018. At that point, they blockade the Supreme Court so that no matter what happens, Trump can't appoint anyone, but even so, her death means she isn't there to vote, and there is a high likelihood of 5-3 conservative rulings (which isn't really that different from 5-4 anyway, but I'm getting to the real consequences...). But, there's a good chance the moron croaks before then and Trump appoints her replacement, when she could have just done the smart thing and retired under Obama. Would it have taken the nuclear option to confirm a replacement? Of course, but the nuclear option was inevitable anyway. The fact that she didn't think it was even a possibility in 2014, having just watched it happen, shows that she truly is the dumbest member of the Court.
If Anthony Kennedy is smart-- smarter than Ruth Bader Ginsburg-- he will retire in time to allow Trump to appoint a successor before the 2018 election because otherwise, the Democrats could retake the Senate and blockade the Supreme Court. I suspect that Kennedy is smarter than Ginsburg because my dumbass fucking cats are smarter than Ruth Bader Ginsburg. There is a high likelihood, then, that Trump will be able to appoint a replacement for Kennedy, who will be far to the right of Kennedy, and there is a high likelihood that older-than-dirt-as-well-as-cancerous Ruth Bader Ginsburg will kick the bucket before the Democrats even have a chance to retake the Senate in 2018, allowing Trump to move the Court way to the right.
Imagine this: a Supreme Court with Roberts, Alito, Thomas, plagiarist-Gorsuch and two more Trump nominees. That's a real possibility. If Kennedy isn't a fucking nitwit, it will be at least one more Trump nominee.
Strategic retirement is a thing. Ginsburg just isn't smart enough to understand it, and never was. Of course, even if she had retired, that wouldn't prevent a Roberts/Alito/Thomas/plagiarist-Gorsuch/other-Trump-nominee Court, and that's a five-justice majority to do things like overturn Roe v. Wade, but add a sixth justice to that and the left is fucked for a long, long time.
So remember: Ruth Bader Ginsburg is dumber than Clarence Thomas. Deal with it.
*Former Chief Justice William Rehnquist put stripes on his robes as a Gilbert & Sullivan thing. Yes, really.
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