I was looking at the comments to a Political Wire link to my new Slate piece, and a reaction I see there (and I’ve seen elsewhere, such as at the WSJ Law Blog) is: Justice Scalia (and Kennedy) will not voluntarily retire if Obama is reelected in 2012 (unless there is some compelling health or personal reason). I completely agree with that sentiment, but I think it misses my point.
As I wrote: “Obama should instead stress that if a Republican wins in 2012, Scalia and Kennedy will probably retire. That would give the new Republican president the chance to entrench the five-justice Republican majority for decades–and to cement it, by replacing Kennedy with a wholly reliable right-wing vote. That’s the Supreme Court script for the Democrats in 2012.”
That’s what makes this a good campaign argument for Obama, and one that is much more realistic than a claim that Justice Scalia will retire for Obama in 2012.