Diary

Ginsburg is Cancer-Free and the Courts Enter a Stasis

FILE - In this Feb. 4, 2015 file photo, Supreme Court Justice Ruth Bader Ginsburg speaks at Georgetown University Law Center in Washington. Ginsburg’s public criticism of Donald Trump is dividing legal experts over whether the leader of the court’s liberal wing should recuse herself in any future case involving him. (AP Photo/Manuel Balce Ceneta, File)

This past Wednesday, Supreme Court Justice Ruth Bader Ginsburg made the announcement that she is cancer-free and in good health.  She was last discovered to have cancer in the November of 2018 when she fell in her office.  Things did not look good for the Justice at the time.  This was her third bout with cancer in the past 20 years, it was pancreatic cancer (one of the most difficult to treat), and on top of that, she is just plain old, turning 87 in March.  That’s a few of strikes against her.  Since the cancer was discovered, we’ve seen frequent speculation, at this site and other outlets across the political spectrum, that her remaining time on the Court was counted, and that President Trump would be nominating her replacement this year.

I always believed that such speculation was premature.  While she did have strikes against her, in my opinion the speculators ignored all that RBG had working for her.  Cancer is bad, but she survived it twice before, and surviving the third time is easier than the first.  As a Supreme Court Justice, she also has the best medical care available in the world, and that’s very powerful in our modern age.  Most importantly, she appeared to have the will and the energy to live, which can be even more powerful.  In any case, given Wednesday’s announcement, it now seems unlikely that Ms. Ginsburg is going anywhere, and we can expect the current Court to remain the Court for the foreseeable future.  If I had to bet, it would be on President Trump getting no Supreme Court nominations in his second term.

Looking at the High Court, it appears to be very slightly to the right of where it was five years ago.  I think it took a baby step to the left when Gorsuch replaced Scalia (not a knock on Gorsuch, it’s just nigh impossible to get to the right of Scalia), and a bigger step to the right when Kavanaugh replaced Kennedy.  In the next few years, the Court will be taking up important cases on the right to life, immigration, presidential and congressional power, and other issues.  Because the current Court leans slightly to the right, I expect we’ll win more of these than we lose, but will also continue to get frustrating losses.  The dream of a strongly conservative Court with Amy Barrett replacing Ginsburg and Thomas Hardiman replacing Breyer will remain an illusory fantasy, and that’s just the way it is.

It’s also not just the Supreme Court that is likely to remain steady, it’s the entire federal judiciary.  In the first three of his presidency, Trump has had 50 appeals court judges confirmed, which has been widely celebrated on the right as a major accomplishment, and appropriately so.  However, the speed of confirmations also means that there are now only two vacancies left to fill, and the appeals courts at the end of Trump’s presidency in five years will likely look substantially as they do today, which is with a slight rightward lean.

We have cemented conservative majorities down the middle of the country in the 5th, 6th and 8th circuits and gained narrow ones in the 2nd, 3rd, and 11th circuits, all to the good.  But while the DC, 4th and 9th circuits are now not as far left as they were 3 years ago, they still lean left, and will give us more unfavorable rulings than favorable ones.  In all 3 of those, roughly 65% of cases will be heard by 3-judge panels made up of 2 or 3 Obama and Clinton appointees.  The 4th circuit is likely to be very problematic, as the newly Democrat-controlled Virginia tests the limits of progressive policy without a judicial backstop.  On the 9th, the oldest Democrat appointee is only 75 years old, and it’s no sure bet that President Trump will get another nomination on that circuit.

The political implications of the judicial stasis are interesting for the GOP.  Speaking broadly, the Senate Republican caucus is split between senators who actually want to accomplish some conservative policy, and machine politicians who just want to get reelected and keep the federal gravy flowing to their states.  Over the past three years, Mitch McConnell has turned the senate into a confirmation machine, which has served to keep the caucus unified and the base contented.  The thinking appears to be that if they just confirm enough judges, all of the bad legislation and spending will not cost them enough votes to get elected.  Witness the atrocious omnibus passed in December.  Conservative media was largely silent on it, despite the enormous spending levels and the total cave to left-wing policy riders.  It appears that Mitch’s strategy here has been successful so far.

However, with no vacancies left to fill and the senate’s days as a conservative judge-confirming machine coming to a close, the ability of the senate’s confirmation power to unite the Republican caucus also diminishes, and I expect to see more fights over spending and policy in our future.  In order to maintain a Republican majority, Republicans are going to need conservative votes, and without judges to confirm, these can only be won with legislative victories.  I for one welcome this; it is after all the legislature’s job to legislate, and the senate has been doing a downright crappy job of it.

So, as we enter a new year and a new decade, let’s all look forward to a new era of politics, with the courts largely set, and new battles in Congress.  And finally, let’s all of us rejoice at what appears to be a full recovery for Justice Ginsburg, for as the Scriptures tell us, “The Lord God did not make death, nor does he delight in the destruction of the living.” Ws 1:13