Supreme Court justices aren’t supposed to be political actors, and they aren’t supposed to time their retirements to ensure they are replaced with a like-minded justice.
But Ruth Bader Ginsburg’s latest comment about when she will retire is almost impossible to separate from politics. Indeed, it almost seems to send a concerted signal to liberals not to worry about her handing President Donald Trump another Supreme Court vacancy.
“I’m now 85,” Ginsburg told CNN. “My senior colleague Justice John Paul Stevens, he stepped down when he was 90. So think I have about at least five more years.”
This is a message that understandably cheered liberals. While Neil Gorsuch was the appetizer for conservatives, and Brett Kavanaugh would be the first course, a Ginsburg vacancy would be the feast.
Unlike Trump’s first two nominations to replace GOP appointees, replacing her with a conservative justice would clearly and unmistakably solidify the right’s hold on the nation’s highest court for years - and possibly decades. And given that Ginsburg is the court’s oldest member at 85, it’s a possibility that can’t be ignored.
But with one quote, Ginsburg set the goal posts for her retirement in a suspiciously convenient place for liberals: when Trump probably won’t be able to pick her replacement.
Five years from now puts us in late July 2023. That could still be during Trump’s presidency, if he’s reelected in 2020. But Ginsburg doesn’t say only five years; she says “about at least five more years.” That sounds as if she’s shooting for 2024.
Which could also still be with Trump in the White House. But.
But it would also be a presidential election year - which Republicans clearly and unmistakably said during the Merrick Garland fiasco is not when you confirm Supreme Court justices. Democrats rather laughably tried to argue at the start of the current vacancy that Republicans set the standard at not confirming justices in any election year. That’s wrong. They did, however, make pretty clear that no confirmation process should take place in presidential election years. And they made even clearer that an appointment shouldn’t be made by a lame-duck president - which Trump would be.
“We’re following the Biden rule,” Senate Majority Leader Mitch McConnell, R-Ky., said at the time, talking to “Fox News Sunday” host Chris Wallace. “And [Joe] Biden was chairman of the Judiciary Committee in 1992, in a presidential election year, he said the Senate should not act on filling a Supreme Court vacancy if it had occurred that year. . . . So, all we’re doing, Chris, is following a long-standing tradition of not filling vacancies on the Supreme Court in the middle of a presidential election year.”
McConnell added at another point: “I believe the overwhelming view of the Republican conference in the Senate is that this nomination should not be filled - this vacancy should not be filled by this lame-duck president.”
Antonin Scalia died in early 2016 - mid-February - meaning that it would be very difficult for Republicans to justify any replacement in 2024 being confirmed. Democrats have gone too far in accusing Republicans of hypocrisy on Kavanaugh’s nomination, but confirming a justice in 2024 would clearly go against just about everything Republicans said two years ago.
Which isn’t to say that they wouldn’t try. If the Republicans still have the presidency and the Senate, they wouldn’t need any Democratic votes to confirm Ginsburg’s replacement. And the payoff for them might be worth doing something nakedly partisan and hypocritical. But Ginsburg seems to be at least aiming to force that issue by waiting until 2024 - if not 2025, when history suggests it would be very difficult for Republicans to retain the White House with a two-term, lame-duck president.
Plenty has yet to play out here, but liberals have reason to cheer. Ginsburg, at the very least, seems intent upon giving them a chance to win back the White House before her replacement is picked. Whether that’s how these things should be handled is another question.