Let’s Say Ruth Bader Ginsburg Retires in 2023. Then What?

Progressives embroiled in an uphill battle to stop the confirmation of Donald Trump’s second Supreme Court nominee, Brett Kavanaugh, got some assurances over the weekend that he probably won’t quickly get a third. Justice Ruth Bader Ginsburg said in an interview that she planned to stay on the Court for five more years, matching the retirement age (90) of John Paul Stevens, the last member of SCOTUS to voluntarily retire before Anthony Kennedy announced he was hanging it up last month.

If Ginsburg does stick around for another five years, her retirement, of course, would happen long after the 2020 presidential election, when the American people (or at least the Electoral College) will have had a chance to send the 45th president back to the reality-show fever swamps from whence he came. If Trump is reelected, however, all could be lost for progressives in terms of SCOTUS — unless his party loses control of the Senate and cannot secure confirmation of any old Roe-hating pro-corporation Federalist Society nominee.

That is a livelier possibility than one might think. After 2018’s psychotically pro-GOP Senate landscape, the next two Senate cycles look a lot more positive for the Donkey Party. In 2020, assuming special elections in November go the way they are expected, there will be 21 Republicans and just 12 Democrats facing reelection. Yes, one of those Democrats, Doug Jones of Alabama, will be in extremely hostile territory. But the other 11 should be in reasonably good to great shape. And Republican Senate seats in Colorado, Iowa (where Chuck Grassley should finally retire), North Carolina, and possibly Georgia could be vulnerable to a takeover.

If Trump is reelected to a second term, then the 2022 Senate cycle should feature a strong anti-White House breeze (the usual second-term midterm blues for two-term presidents will likely be intensified by the unusual wear-and-tear of dealing with this overbearing man for so long), and the landscape is again pro-Democratic. There will be 22 Republican Senate seats — including those in the competitive states of Arizona, Florida, Georgia, Iowa, North Carolina, Ohio, Pennsylvania, and Wisconsin — and again just 12 Democratic seats.

One implication of this future landscape is that Democrats should not despair if they fail to gain control of the Senate this November. A more realistic goal given the horrific landscape is to minimize losses or to break even and then set up a Senate takeover in 2020 and/or 2022. Even if Trump manages somehow to secure reelection to Keep America Great, his ability to shape SCOTUS and the rest of the federal judiciary depends on a friendly Senate. He might not have that at all, and Ruth Bader Ginsburg could have the last laugh even if her Court tenure does not outlast his presidency.

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