The passing of Justice Ruth Bader Ginsburg

In mid-July, Justice Ruth Bader Ginsburg was facing yet another round of cancer – this time pancreatic cancer.  She had beaten cancer on a number of previous occasions – making her what I described as “one tough old gal.”  But even a tough gal cannot always beat the odds.

Ginsburg was an intellectual powerhouse that could express her liberal views persuasively, but without rancor.  It was a testimony to her character that her closest friend on the Supreme Court was arguably the most conservative member, Justice Antonin Scalia.  He was the perfect counterpart to Ginsburg – an intellectual powerhouse, but without rancor.  The high court had no better representative of the liberal viewpoint than Ginsburg.

Ginsburg was also the celebrity of the Court.  She was deemed to be the Court’s rock star – appearing in documentaries and on the covers of innumerable magazines.  Young people wore RBG t-shirts.

On September 18, 2020, Ruth Bader Ginsburg became a historic figure.  The book of her attributes and achievements closed – left for future generations to remember and historians to interpret.

Ginsburg’s passing came as a surprise to much of the public.  That is largely due to the fact that her terminal illness was not reported.  Make no mistake.  The so-called insiders were well aware that she was in the last stages of pancreatic cancer.

Perhaps the reluctance to report on her expected demise was out of a hope that she would survive past Inauguration Day 2021 – and that former Vice President Biden would be given the responsibility to select a successor.  In her own postmortem statement, Ginsburg, herself, expressed her wish that her successor would be selected by the winner of the 2020 presidential election.  There was no mistaking who she hoped that would be.  She had previously stated that she did not want Trump to nominate her replacement.

With all the grit and determination in her frail body, she could not make herself survive long enough to take the chance that it would be Biden – and not Trump – taking the oath of office in January.

On July 20^th, I wrote a commentary addressing Ginsburg’s announcement of renewed cancer —  and said “ … the entire nation wishes her a quick and speedy recovery – even though that is not a likely outcome.  At 87. Ginsburg is on the precipice of eternity.  Everyone knows that.”

I further wrote:

“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.”

That moment has come.  Her death comes at a time when mourning will quickly give way to the political machinations.

As I predicted in that July 20 commentary.  Her death in the last days of a Trump administration would set off political wrangling unseen in our lifetimes.  The confirmations of Justice Neil Gorsuch and Brett Kavanaugh will seem like a love-in compared to what lies ahead.

Gorsuch and Kavanaugh replaced members of the Supreme Court who were not dramatically different than themselves.  The Court remained evenly divided with Chief Justice John Roberts assuming the swing vote position.

There will be a clamor from the left to keep the seat open for the next President.  They will cite the largely irrelevant “Biden Rule” against nominating a candidate in a presidential election year.  It was not really a “rule,” but just a pragmatic political strategy-of-convenience depending on the circumstances of the moment.

Senate Leader Mitch McConnell seemed to invoke the Rule when he blocked the confirmation of Merritt Garland in the last days of the Obama administration.  Of course, the Rule was only an excuse.  What McConnell did was use his Republican majority and the rules of the Senate – his constitutional powers — to postpone the confirmation in the hope that Trump would win the 2016 election.  It was a longshot gambit that paid off.

You can bet the ranch that the Biden Rule will not be invoked this time.  Knowing that Ginsburg was terminally ill, Trump is ready to name his nominee – after a very short period of respectful mourning.  Trump has published his list of candidates for the high court – and there is not a liberal on the list.  This means that Ginsburg is likely to be replaced by a conservative justice – leaning the court to a conservative constitutionalist majority for potentially years to come.

McConnell – for his part — will commence hearings before the election.  The odds – based on the rules of the Senate – is that confirmation will likely happen sometime before Inauguration Day.

There will be a LOT of caterwauling, but McConnell has all the constitutional powers on his side – as long as he has the vote.  Win or lose the election, Trump will have impacted on the Supreme Court more than any President since Franklin Roosevelt – and FDR needed three terms to do it.

Apart from the hysterical cries from Democrats – and the hyper-dramatic reporting of the left-wing news outlets – there is another reaction about which to be concerned.  And that is the reaction of the mobs that are already poised for violent protest in the streets.  This could be just another excuse to renew the burning, looting and vandalism.

Hang on to your hats because our political ride is about to get wild and scarier than ever.

So, there ‘tis.