Diary

Get Well Soon, Justice Ginsburg

The nature of the Supreme Court – life tenure, the fact that most Justices tend to live long and step down only when illness or death forces the issue, and the enormous stakes in each new Justice’s selection – tends unavoidably to set political commentators into full circling-buzzard mode at the first word that a Justice might be ill enough (or, in Justice Stevens’ case, simply old enough) to make a vacancy imminent. Tom Goldstein argues that Justice Ginsburg’s surgery for pancreatic cancer shouldn’t trigger that reaction, despite her age, her prior history with cancer (which apparently makes chemotherapy impossible) and the fact that pancreatic cancer has a famously high and fast mortality rate (think of Gene Upshaw, who died days after his diagnosis). As Goldstein notes, that mortality rate is largely because the disease is rarely detected early, and Justice Ginsburg caught a break in being diagnosed early (as was the case for Steve Jobs).

Of course, as a Supreme Court practitioner, Goldstein has a vested interest in defending a sitting Justice (that’s true of me as well), so take it with a grain of salt; but his point is well-taken as far as not jumping to conclusions. We should all wish Justice Ginsburg good health and the freedom to retire or not on her own terms, politics aside. And yes, I know that given the passions the Court arouses and the life-and-death issues it handles, that can be hard at times to do sincerely, but making the effort is itself good for your mental health if you spend too much time in the arena of political blood sport.

All that said, obviously the Obama Administration and Senate Republicans alike need to be thinking ahead to the possibility that her illness at least increases the odds of a vacancy this year, and political commentators being what they are, we can’t help but speculate. Goldstein’s own site had a list up last week of four possible names – Seventh Circuit Judge Diane Wood, Second Circuit Judge Sonia Sotomayor, Harvard Law Dean (and Solicitor General nominee) Elena Kagan, and Michigan Governor Jennifer Granholm. Three things are clear at this early stage. Number one, if Justice Ginsburg’s slot ends up being the first one filled, whether this year or later, the departure of the only remaining female Justice would make it politically impossible for Obama not to pick a woman, hence the names on that list. Number two, whoever it is better have their taxes in order. (I think it’s safe to say that for partisan purposes, Republicans would salivate at Granholm, a politician with no judicial experience and a disastrous economic record in Michigan; as a lawyer, I’d rather see someone with actual, proven competence/excellence as a judge and/or lawyer, a point I made repeatedly during the Harriet Miers debate). And number three, to the extent that any nominee is at all controversial, Senate Republicans are going to have to decide if their longstanding principled stand in favor of bringing judicial nominees to a vote – there was no opposition at all to Justice Ginsburg, and no effort to filibuster Justice Breyer – will end up getting discarded, given (1) the prevailing sense that Republican disarmament on this issue has been unilateral and specifically that (2) Obama himself voted against Chief Justice Roberts and voted to filibuster Justice Alito, and is therefore uniquely poorly positioned to demand Senatorial deference to his selections. It’s premature as well to make that decision (my own longstanding view is that it’s legitimate to use the filibuster to slow down a nomination long enough to gather information and muster political opposition, but not to wholly deny a floor vote), but if there’s a vacancy during Obama’s presidency, it will surely arise.