Justice Ruth Bader Ginsberg has cancer – a particularly deadly form of cancer. And it is not her first bout. She has contracted and defeated cancer multiple times. She is what we colloquially call “a tough old gal.”
She is currently undergoing chemotherapy and other medical treatments. She has issued statements proffering optimism in terms of future longevity – and her ability to keep up with Supreme Court responsibilities. That may be true to a degree, but the combination of age and health makes modifications to her schedule and workload necessary. The increasingly frequent trips to the hospital are evidence of that.
In that, the entire nation wishes her a quick and speedy recovery – even though that is not a likely outcome. At 87. Ginsberg is on the precipice of eternity. Everyone knows that.
Given her age and condition, most justices would step aside. The reason that she does not is the talk of the town — but only whispered in the cloistered rooms of political power.
Her desire to maintain her seat on the Supreme Court is driven by one overriding fear – that President Trump would name her successor and win approval in the Republican Senate. That same fear has the left totally apoplectic.
Should Trump be re-elected, it is almost certain that he would be replacing Ginsberg. That makes the Supreme Court a defining issue for many voters. Even worse, a second term could give Trump a number of nominations to the High Court. It has been reported that several conservative justices – including Clarence Thomas – would step down sometime in the next four years. But of particular concern is Justice Stephen Breyer — one of the Court’s more consistently liberal members, who is currently weeks away from his 82nd birthday.
It is no exaggeration that the future of the Supreme Court is in the balance in the next four years. The precarious liberal/conservative balance will most likely be shifted more decidedly in one direction or the other – depending on who is sitting in the Oval Office.
The most intriguing and intense whispered speculation is what happens if Ginsberg passes or absolutely must leave the Court before January 20, 2021 – before Trump leaves office.
Democrats and their media pals will scream that the choice should be made after January 20th – resurrecting the old 1992 “Biden Rule” against nominating a candidate in the last year of a presidential term. It was proffered to stop President George H. W. Bush from nominating a justice while he was facing a tough re-election campaign.
Democrats – including Biden – argued against the Biden Rule when Democrats wanted Senate Majority Leader Mitch McConnell to approve President Obama’s nomination of Merritt Garland, who was nominated in Obama’s last year in office. Senate Majority Leader Mitch McConnell held out, citing the Biden Rule. His political gamble paid off when Trump won the presidency and put Justice Neil Gorsuch on the high court.
So … the political class is speculating quietly behind closed doors on what would happen if the Ginsberg seat were to be vacated for whatever reason in the near future?
In my judgment, the answer is rather simple – but it all depends on when the vacancy takes place. There is no precise demarcation point, but I suggest that if the vacancy were to occur prior to December 1st – and Biden was the President-elect – McConnell would preside over the fastest confirmation process in American history. And there is nothing that could be done to stop him because he and the GOP control all the rules. There is nothing illegal, immoral or unconstitutional about it.
For sure, there would be outrage on the left that would make the confirmation of Justice Brett Kavanaugh look like a love-in. But there would be no reason for McConnell not to do what politicians do all the time – use the constitutional and legal powers of the office to pursue their political interests. That is why we see so-called principles being flipped and flopped back and forth depending on whether the people doing flipping and flopping are in office or out of office. It is called hypocrisy – and it is a mainstay of political life.
That is why the left is praying … uh … make that hoping … that Ginsberg will hang on until next year – at which time she is most likely to hand in her resignation. And let’s face reality, a lot of Republicans are secretly hoping that Ginsberg will give Trump one more shot at the Supreme Court. If that sounds too cold, just keep in mind all those radical Democrats who have been overtly wishing for the demise of Trump. They have wanted him out of the White House – whether by impeachment, resignation, or feet first from the day he got elected.
Ginsberg is facing her own mortality with courage and dignity. She is a class act. But she is also realistic enough to know that whether she can stay well long enough to prevent Trump from filling her seat is no longer up to her. It is more in the hands of doctors and providence.
But a drag-out political battle over a Supreme Court nomination on top of the Covid-19, the economic crash and the civil unrest is beyond the imagination of the most creative political fiction novelists.
So, there ‘tis.