Ruth Bader Ginsburg Could Have Named Her Successor -- All She Needed to Do Was What Anthony Kennedy Had the Foresight to Do

FILE - In this June 1, 2017, file photo, Associate Justice Ruth Bader Ginsburg joins other justices of the U.S. Supreme Court for an official group portrait at the Supreme Court Building in Washington. In different circumstances, Ginsburg might be on a valedictory tour in her final months on the Supreme Court. But in the era of Donald Trump, the 84-year-old Ginsburg is packing her schedule and sending signals she intends to keep her seat on the bench for years. (AP Photo/J. Scott Applewhite, File)

 

When the Democrats in the Senate and on the Judiciary Committee are railing against the injustice and outrage of having Donald Trump name the successor to Justice Ginsburg, they should reserve a significant amount of their opprobrium for Justice Ginsburg herself, and a few others who made this possible.

When Barack Obama was elected President in 2008, Justice Ginsburg was 75 years old and had served on the Court for 15 years.  She was nominated to the Court by Pres. Clinton when she was 60, and in 2008, she was already the oldest member of the Court.

When she was asked in an interview with the NYT in 2016 if the Senate should consider Merrick Garland’s nomination ahead of the election, her answer was:

“That’s their job.  There is nothing in the Constitution that says the President stops being President in his last year.”

And there’s nothing in the Constitution that says the Senate Majority Leader surrenders control of the Senate Calendar to any President at any time.

Anthony Kennedy announced his retirement from the Supreme Court in the summer of 2018, at the age of 83.  He did so knowing that a Republican President would pick his successor, and the Senate was in control of the Republican Majority Leader Mitch McConnell.

Democrat Harry Reid was Senate Majority Leader for the first six years of the Obama Presidency.  In 2013 and 2014, the last two years in which Reid controlled the Senate Calendar, Ginsburg was 80-81 years old.  Had she announced her retirement she likely could have told Obama who she wanted to replace her, and I’m guessing he would have acceded to her request.

She had already suffered through two bouts of cancer — colon cancer first detected in 1999, and pancreatic cancer detected in 2009.  Only those who were close to her can offer any insights into her thinking for not choosing to retire at that time in order to resolve with certainty — and favorably — the person who would replace her and likely serve 30 or more years on the Court.  Justice Ginsburg sacrificed that opportunity so she would continue to write dissents on cases of interest to her since she was almost certainly going to remain in the losing minority on most such cases.

Maybe she expected to have more control over favorable outcomes for the liberal bloc since, as the senior Justice in any liberal majority decision, she could opt to write the opinion herself or choose who she wanted to assign the opinion writing to.  But in the 5-4 decisions where the liberals had success, the fifth vote was usually either Justice Anthony Kennedy who was senior to her on the Court and therefore controlled the writing of the opinion — and wrote many himself — or later it was Chief Justice Roberts, who in his role as Chief is deemed “senior” to every Associate Justice and always writes or assigns the writing of the opinions when he votes with the majority.

One supposition is simply that she was confident Hillary Clinton would win in 2016, and she wanted the arc of her history as a Justice to be completed by having the first female President of the United States appoint her replacement to the Supreme Court.  That would have made a nice ending to the movie “On the Basis of Sex”, which was a biographical account of her efforts as an attorney to extend the protections of the 1964 Civil Rights Act to women.  But Hillary Clinton lost so that ending will have to be saved for Quinton Tarantino’s biographical version of Justice Ginsburg’s life on the Supreme Court.

She tempted fate, and fate taught a cruel lesson.  “Donald Trump” is probably among the five names of people from her life in New York she would have listed to not have the opportunity to name her replacement to the Court, and yet that is exactly what is about to happen.

The Democrats can blame Barack Obama — and Harry Reid — too.  When Barack Obama was first elected President in 2008, popular victory swept down into the Senate with Democrats gaining 8 seats in that election, knocking off five GOP incumbents and winning 3 open seats previously held by the GOP.  The Democrats held 57 seats and had two Independents who caucused with them.

Yet just six years later, based on GOP opposition to the policies pursued by Obama and the Democrats in Congress, the GOP regained control of the Senate.  In 2014 alone, the Democrats lost 9 Senate seats — 5 lost re-election bids and the GOP took over the seats of 4 Democrats who retired rather than face difficult races in a hostile environment.

That was why the GOP refused to give Barack Obama a vote on Merrick Garland.  The US electorate had overwhelmingly rejected the first six years of the Obama Administration and resoundingly delivered control of the Senate to the Republicans.  The midterm election of 2014 was the functional equivalent of a “No Confidence” vote in the Obama Administration by the American people.

That was the political landscape that Justice Ginsburg’s gamble placed her into.

So the persons or groups responsible for President Trump having been given the opportunity to nominate Justice Ginsburg’s replacement to the Supreme Court — and Mitch McConnell holding the authority to move that nomination to a confirmation vote — are 1) Justice Ginsburg, 2) Barack Obama, 3) Harry Reid, and 4) the American electorate.

Donald Trump and Mitch McConnell thank you all.