This week, Supreme Court Justice Ruth Bader Ginsburg, 85, missed oral arguments in the court for the first time in her 25 year tenure on the bench. She’s currently recovering from surgery to remove cancerous growths from her lungs.
For most of us, this news is highly concerning. But for the Trump administration, it’s an opportunity. According to Politico, the White House is already preparing possible plans for Ginsburg’s departure. Fuck.
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.”
This is very bad.
After Ginsburg’s surgery, things were looking good. After just a few days of recovery, she was up and working at the hospital, and her doctors said there was no sign of remaining disease.
But she also wasn’t intending on missing oral arguments, something she has avoided through two other bouts of cancer treatment:
Though Ginsburg and the Court itself have been tight-lipped about her health, her absence from the bench this week has become a cause of concern because of her remarkable past attendance streak, which persisted through two previous cancer treatments and a number of other health scares. At the outset of oral arguments on Monday, Chief Justice John Roberts said she was “unable to be present” but would participate in the cases nonetheless, reading briefs, filings, and a transcript of the sessions.
If the worst happened, and Ginsburg resigned or, god forbid, died, Trump and his team would have the opportunity to install a third justice on the Supreme Court, following the nominations and confirmations of Neil Gorsuch and Brett Kavanaugh.
The White House has begun drafting a list of potential replacements for Ginsburg, many of them reportedly women, most likely in the hopes that they’ll avoid nominating another alleged sexual predator. This process will fall to White House counsel Pat Cipollone, who replaced Don McGahn when he left in the wake of the Kavanaugh nomination.
[The possible nominees] include Seventh Circuit judge Amy Coney Barrett, who was a leading contender for the last Supreme Court vacancy, created by Justice Anthony Kennedy; Sixth Circuit judges Joan Larsen, Amul Thapar, and Raymond Kethledge; Eleventh Circuit judge Britt Grant; and Third Circuit judge Thomas Hardiman; and Neomi Rao, Trump’s current nominee for Kavanaugh’s old seat on the D.C. Circuit Court.
Even conservatives dread the fight that would follow Ginsburg’s departure.
“It would be a brutal confirmation,” John Malcolm, director of the Heritage Foundation’s Meese Center for Legal and Judicial Studies, told Politico. “The first two were not easy at all, but this would be much harder in this respect: When Neil Gorsuch was the nominee, you were replacing a conservative with a conservative. With Kavanaugh, you were replacing the perennial swing voter, who more times than not sided with the so-called conservative wing, so that slightly solidified the conservative wing.”
“But if you are replacing Justice Ginsburg with a Trump appointee, that would be akin to replacing Thurgood Marshall with Clarence Thomas,” Malcolm continued. “It would mark a large shift in the direction of the court.”
If that were to happen, there would be a five or six person conservative majority on the court that could persist for decades to come. Such a majority would allow the court to advance terrifyingly regressive policies, the most alarming of which would be overturning Roe v. Wade.
In December, Ginsburg said at a speaking engagement that she “will do this job as long as I can do it full steam.”
Get better soon, Ruth.