Advancing a Free Society

Sebelius Resigns - But Did The Wrong Lady Call It Quits?

Sunday, April 13, 2014

The big news out of Washington last week: the swift resignation of Health and Human Services Secretary Kathleen Sebelius – a lickety-split split from the Obama Administration in that the news was dropped late on Thursday, followed the next day by a goodbye ceremony at the White House, at which time her replacement was introduced.

Sebelius’ departure is the classic Washington whodunit. Did she leave on her own accord, as do many a cabinet secretary in a second presidential term? Or, now that Obamacare can claim its 7 million signees, was the head of HHS a pre-Easter sacrificial lamb for those who’ve been calling for her head?

(Appropriate for the manager of the Obama Administration’s troubled healthcare law, even her farewell remarks had a noticeable glitch)

Here’s yet another way to look at life after Sebelius: it’s the question of justice – spelled with both a lower- and upper-case “j”.

As for lower-case justice, the argument here is the resignation is months overdue. Sebelius could have/should have stepped down sometime around last Halloween, right after Tennessee Sen. Lamar Alexander called for her to resign, seconding 32 House Republicans calling for the same. Alexander’s not exactly a bomb-thrower. Instead, he offered a very reasonable rationale: as HHS Secretary, it was Sebelius’ responsibility to oversee the rollout of the new federal health insurance website – a techno-blunder that Sebelius would later try to brush off as “miserably frustrating”.

But Washington being Washington – no culture of shame, no one walking the gangplank unless the ship’s already sinking – Sebelius didn’t step down. At least, not for another five-plus half months.

Not exactly justice denied, but certainly justice delayed.

As for upper-case justice, that would be Supreme Court Justice Ruth Bader Ginsburg, whose future isn’t a whodunit. It’s a “when’s-she-gonna-do-it?”.

About Ginsburg, the eldest of the currently-serving justices (here’s all nine, by age and appointment): she turned 81 last month, has struggled with health issues (early-stage colon cancer in 1999; early-stage pancreatic cancer in 2003), and has been known to cat-nap through the occasional State of the Union Address. In August, Ginsburg will have completed her 21st year on the High Court bench. Of the 112 men and women who’ve donned the robe, she’s currently 39th in tenure (passing Horace Gray this week).

One other thing about Ginsburg: she hasn’t signaled any interest in stepping down from the court this year, which has liberals worried. If you take her at her word, she won’t leave until at least the summer of 2016 (when she has 23 years on the bench, matching the record of one of her idols, Justice Louis Brandeis), or the spring of 2023 (when she’d be 90, the same age as Justice John Paul Stevens at the time of his retirement).

In either case, it’s a headache for the Obama White House, which would like to replace the two Clinton-era picks – Ginsburg and Stephen Breyer (appointed in 1994, a year after Ginsburg) – before one of two things happens: a Republican is sitting in the Oval Office (that won’t be until January 2017 at the earliest), or the U.S. Senate is under GOP control (which could very well be the case in 2015).

Should Ginsburg resign this year, President Obama’s pick has the relative luxury of a nomination process driven by a Democratic Senate. That means a worst-case scenario of surviving Judiciary Committee hearings on a party-line vote. Republicans could threaten a filibuster on the Senate floor, but could very well back down just as they did with a threatened government shutdown given the fear of the stunt backfiring in an election year’s that lining up well for the GOP.

But in a Republican Senate, it’s a different set of hearings for whoever would succeed Ginsburg or Breyer – or Justice Anthony Kennedy, who turns 78 in July, with 26 years on the High Court.

How do we know this? Simple: go back to 1987 and Robert Bork’s Supreme Court nomination fight. An empowered Democratic majority fresh off its landslide win the previous fall, in which it gained eight seats and a return to control of the chamber after a six-year absence, turned what should have been dignified affair into a partisan knife fight, complete with character assassination, misrepresentation of Bork as an extremist, and over-the-top camera-mugging by the late Edward Kennedy and the Judiciary Committee’s chairman, Joe Biden, who used the televised hearings as free advertising for a presidential run that, it turned out, collapsed in the middle of the hearings.

Should the GOP take over the Senate in 2015, Charles Grassley of Iowa stands in line to take over as Judiciary chairman. He’s not as bombastic as Biden, but there is a Republican senator on the committee could use the hearings to showcase his presidential ambitions, ala Biden in 1987.  And that would be Texas Sen. Ted Cruz, who put the court at the heart at his run for statewide office in 2012.

Replacing Ginsburg won’t be easy for the Obama White House, regardless of the calendar or the Senate’s makeup. The departure of a female justice will have liberal women’s groups screaming gender. Then again, Obama’s Supreme Court picks so far: Sonia Sotomayor and Elena Kagan. And there are competing pressures: There never has been an Asian American on the High Court. Would America’s first black president go eight years without choosing an African-American justice?

While not everyone in the Obama coalition will be pleased by the pick to replace Ginsburg (odds are he’d play it safe and not go with another former director of the ACLU Women’s Rights Project), there’s something to be said about her departing sooner rather than later. Done in the summer of 2014, it avoids the threat of a messier confirmation next year, and possibly rallies a piece of the deflated Democratic base.

Making one wonder: did the wrong woman resign last week?


Follow Bill Whalen on Twitter: @hooverwhalen