If Supreme Court Justice Ruth Bader Ginsburg knew she was dying, it appears she didn’t want her successor installed until President Donald Trump was out of office.
Ginsburg lost her battle with pancreatic cancer on Friday at the age of 87. She had initially been diagnosed with the cancer in 2009, but at that point, she was able to read her caseload from her hospital bed while recovering from surgery and was back to work in a matter of days.
Several recurrences of cancer hadn’t kept her from her work, and it was only in January 2019, the month after she underwent a pulmonary lobectomy to remove cancerous nodules from her lungs, that she missed oral arguments at the Supreme Court for the first time, according to Fox News.
The president reacted to her death as one might expect, having learned about it moments after a rally in Minnesota.
“She just died? Wow, I didn’t know that. You’re telling me now for the first time,” Trump told reporters. “She led an amazing life. What else can you say? She was an amazing woman. Whether you agreed or not, she was an amazing woman who led an amazing life.”
The White House released a statement which was conciliatory and mentioned nothing about plans for a replacement for Ginsburg (though Trump did signal Saturday morning that he’d move “without delay” to nominate a successor):
Statement from the President on the Passing of Supreme Court Associate Justice Ruth Bader Ginsburg pic.twitter.com/N2YkGVWLoF
— Donald J. Trump (@realDonaldTrump) September 19, 2020
Justice Ginsburg reportedly had a statement of her own, however, and one which contained language that made it clear she not only didn’t want Trump to make a nomination until after the election, she didn’t want him to make a nomination at all.
According to NPR, Ginsburg’s final statement on the matter, as relayed through granddaughter Clara Spera, was this: “My most fervent wish is that I will not be replaced until a new president is installed.”
Ginsberg’s dying message: “My most fervent wish is that I will not be replaced until a new president is installed.” https://t.co/iIeeUjwnVx
— Jennifer Epstein (@jeneps) September 18, 2020
You can be prepared to hear these words from literally every Democrat in the Senate over the next few weeks.
I don’t even mean literally in the Joe Biden sense of “literally” — in which it actually applies to a statement meant figuratively — but literally as in literally.
Sen. Ed Markey of Massachusetts, who recently beat back a primary challenge by Rep. Joe Kennedy III, wasted no time in threatening to pack the court and eliminate the filibuster if Trump were to nominate a successor to Ginsburg.
“Mitch McConnell set the precedent,” Markey tweeted, referring to McConnell’s 2016 opposition to Barack Obama’s nomination of Merrick Garland to replace Antonin Scalia.
“No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.
— Ed Markey (@EdMarkey) September 19, 2020
Well, this is a curious position, inasmuch as Markey supported Garland’s nomination.
Furthermore, McConnell has expressed his belief that the precedent — based on the so-called Biden rule — applies when the White House and Senate are controlled by different parties.
In 1992, when the rule was proposed by then-Sen. Joe Biden, the president was Republican George H.W. Bush and Senate was in Democratic hands; in 2016, the situation was reversed.
In either case, the party responsible for passing judgment on the nominee could easily block the nomination — and, in fact, would benefit electorally by doing so. In 2020, both the Senate and the White House are in Republican hands.
Other Republicans — specifically, Sen. Lindsey Graham of South Carolina — have suggested the deliberate, targeted acrimony of the Kavanaugh hearings obviated the Biden rule.
Also, there’s a hollow tocsin to Markey’s threat, inasmuch as this is what Democrats have threatened to do anyway.
Consider the fact that the filibuster is already on the chopping block because it could get in the way of the Democrats’ policy agenda. Even Biden, considered a moderate in these matters, has said that “[i]t’s going to depend on how obstreperous [Republicans] become.”
This is to say that if he becomes president and the Democrats win the Senate but don’t hold 60 seats — something that’ll only happen if the Republicans suddenly adopt a platform that forces members of their legislative caucus to pledge allegiance to Belarusian strongman Alexander Lukashenko and Democrats get all the little children in the world to clap their hands simultaneously — and the GOP decides to be “obstreperous” enough to not go along with Biden’s policy prerogatives, the filibuster is gone.
As for packing the court, Biden has said he’s against it. That promise is worth about as much as the paper it’s printed on, particularly given the fact that his own running mate, California Sen. Kamala Harris, told Politico in March 2019 that “we are on the verge of a crisis of confidence in the Supreme Court” and that “everything is on the table” in order “to take this challenge head on,” including court-packing.
In short, Markey’s threat is similar to what we’re going to hear from a lot of Democrats in the coming days: “Don’t nominate a Supreme Court justice to replace Ruth Bader Ginsburg or we’ll do … exactly what we were going to do anyway.”
It’s the words Ginsburg reportedly used, however, that are worth looking at: “My most fervent wish is that I will not be replaced until a new president is installed.”
Ginsburg was a Supreme Court justice. She wasn’t using words carelessly. This was designed to make the 2020 election even uglier.
A “new president” would only be “installed” if and when Donald Trump loses. This is assuming a Trump loss, of course, something Ginsburg hoped for once before back in 2016.
During that election, she took an unprecedented step for a Supreme Court justice by telling The New York Times that she “can’t imagine what the country would be — with Donald Trump as our president” and that if Trump won, her late husband would have said it was “time for us to move to New Zealand.”
She would later apologize for being “incautious.” In this case, though, there’ll be no retraction for incautiousness because there can’t be.
If Republicans confirm a successor, Democrats are threatening to do just what they planned to do anyway.
If Republicans honor Ginsburg’s wishes and don’t confirm a successor, conservative voters will see this as just what it is: a capitulation.
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