One of the constant refrains on the part of radio host Hugh Hewitt for the last decade has been confirm the judges. Hewitt understands that while the Executive and Legislative branches of the US government get most of the airtime, a whole lot of law and – in a sense – a whole lot of governing ends up being done by the Judicial branch, and the federal bench is a lifetime gig. This is why, for Hewitt, it is so important for the GOP to control the Senate and the judicial confirmation process because the people confirmed to the bench will be interpreting the laws for decades to come.
In the lead up to the 2016 presidential election Donald Trump and the GOP made a lot of noise around their plans to appoint a strong, conservative nominee to a then-vacant Supreme Court slot. It was controversial on the part of the Republican-led Senate who refused to bring President Obama’s nominee to a confirmation vote claiming it could and should wait until after the election of the lame duck Obama’s replacement. Even Republicans who were not strong supporters of Trump as a candidate recognized that voting for his Democratic opponent or even sitting out the vote entirely would likely hand a Court pick to the left. A lot of them held their noses, and voted for the brash New York businessman because they cared about the Court.
As history recalls, Trump won that election, quickly appointed his first SCOTUS justice and, after a long and bloody fight, appointed a second one when Justice Kennedy resigned. The balance of the Court shifted a little but it would shift a lot more if another SCOTUS justice resigned their post or died while Trump was in office.
And the rumors of that possibility turning to a reality are spreading.
Justice Ruth Bader Ginsburg has been out of action for a short time following surgery on her lungs as part of her cancer treatment. The 85 year-old liberal justice is recovering and doctors quoted in the press seem to think there is nothing out of the ordinary in her taking a few days off from her work.
Yet what if those ‘few days off’ turned into a permanent hiatus? What if RBG resigned right about now?
The White House is getting prepared for exactly that, according to Politico:
The White House is reaching out to political allies and conservative activist groups to prepare for an ailing Justice Ruth Bader Ginsburg’s possible death or departure from the Supreme Court — an event that would trigger the second bitter confirmation battle of President Donald Trump’s tenure.
The outreach began after Ginsburg, 85, on Monday missed oral arguments at the court for the first time in her 25 years on the bench. The justice, who was nominated to the court by President Bill Clinton in 1993, announced in late December that she underwent a surgical procedure to remove two cancerous growths from her lungs.
The White House “is taking the temperature on possible short-list candidates, reaching out to key stakeholders, and just making sure that people are informed on the process,” said a source familiar with those conversations, who spoke on background given the delicate nature of the subject. “They’re doing it very quietly, of course, because the idea is not to be opportunistic, but just to be prepared so we aren’t caught flat-footed.”
Replacing RBG with a more conservative justice would shift the balance of the Supreme Court significantly, as Politico continues:
The nine-member court is currently divided 5-4 between its conservative and liberal wings. Ginsburg’s departure would allow Trump to create the Court’s strongest conservative majority in decades, a scenario sure to bring intense opposition from Democrats and liberal activists still furious over the October confirmation of Justice Brett Kavanaugh.
The case for Barrett to replace Ginsburg when the time comes is persuasive. Trump nominated her for her present position on the Seventh Circuit, which she has held since November 2017. She has already been through the trial by fire as noted above, and it’s not likely that Feinstein would raise the issue of her “dogma” a second time. Barrett is a woman who takes a telling point away from Democrats who might claim that Trump wants to send just white males to the Supreme Court. She is brilliant. She is pro-life.
And best of all, she has publicly stated that, contrary to Justice Kavanaugh, justices aren’t bound by precedent when a decision conflicts with the Constitution.
Of course, this is all speculation and RBG has said nothing publicly about resigning this week, next week, or anytime soon. If she’s capable of serving through 2020 and potentially seeing in a Democratic president who’ll replace her with an ideological ally, you can bet she’ll try and do that.
But on the other hand rumors are swirling, the right is itching for a confirmation fight they have even-better numbers now to win than with Kavanaugh, and the future balance of the US Supreme Court is up for grabs.
It could be popcorn time, people: settle in for the show.