My thoughts on the Ruth Bader Ginsburg drama. There are 3 currently living retired Supreme Court justices: Sandra Day O’Connor, Anthony Kennedy, and David Souter. Each of these still-living former justices chose to retire, rather than to remain on the bench until death. RGB was perhaps the most left-wing partisan justice ever to serve on the Court, so understandably, she made the purposeful choice to stay on as long as possible. Therefore, it was her choice to politicize the vacancy which would be created by her death. In fact, her last words, as relayed by her granddaughter, were purportedly, “My most fervent wish is that I will not be replaced until a new president is installed.”
[Podcast version (audio only) here (download for later or listen)]
First of all, presidents are elected – not installed – and secondly, the seat belongs to the American people. It never belonged to her. It’s not her seat; it’s not the Democrats’ seat; it’s not the left’s seat; it’s not the right’s seat; it’s the people’s seat. Assuming that RBG actually said that, she didn’t just say wait until after the election, but rather, she wants to wait until Donald Trump’s successor takes office. She’s therefore expressing her desire that Trump not replace her. If she said that, it wouldn’t be the first time that she’s knocked Trump, and it’s frankly sad to think that a man she disliked was the last thing on her mind in her final moments, rather than the granddaughter she was purportedly speaking to.
There can be no doubt that the Constitution provides the that the President is tasked with nominating someone new to fill the vacancy, subject to the advice and consent of the U.S. Senate. The only issue is the timing.The Constitution doesn’t necessarily provide, or require, that federal judgeships last until “death,” per se. What does the Constitution say about this? Article III is the part of the Constitution which lays out the constitutional foundation of the judicial branch, which leaves the logistics to Congress:
Article 3, Section 1
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Thus, a justice serves “during good behavior.” So for life in general, but not necessarily. And it gives Congress the responsibility of organizing the federal judiciary. In fact, one of the first things Congress did in 1789 when it set up shop, is to set up the federal judiciary – including a Supreme Court, with then-6 justices. Of course, we now have 9, though Democrats have been threatening to increase the number (which RBG has gone on the record as opposing, even if done by Democrats).
The language about “holding offices during good behaviour” has been interpreted to mean that the only way federal judges can be removed from office is if the House of Representatives impeaches them, and the Senate convicts them, of “treason, bribery, or other high crimes and misdemeanors.” Only fifteen judges have ever been impeached (that is, formally accused by the House of Representatives) and only eight have been convicted and removed from office. For practical purposes, any judge who does not commit a crime (or do something equally bad) has “lifetime tenure” and will stay in office until he or she dies or voluntarily steps down. And, as the provision says, Congress and the President cannot retaliate against judges by cutting their salaries.
National Constitution Center, Article III, Section One, by Richard W. Garnett and David A. Strauss, https://constitutioncenter.org/interactive-constitution/interpretation/article-iii/clauses/45
Let’s look at the science behind it. There was a study done in 2010 on retirement vs. death-in-office of Supreme Court justices, noting that it was a “small but extremely important social group” which had not been previously studied in this way.
[S]ome observers have long asserted—and others have long denied—that the timing of justices’ resignations from the Court, and even the probability that they die in office, reflect a highly politicized process that, like their nominations, revolves around political compatibility between the individual jurist and the incumbent president of the United States as well as personal circumstances of justices, such as vitality (i.e., health, wellness), age, personal finances, and job tenure (i.e., length of service on the Court; see, e.g., French 2005). We call this assertion the politicized departure hypothesis.
The politicized departure hypothesis is based on (1) the observation that a justice’s retirement—particularly if it occurs early in a president’s term of office—allows the incumbent president to nominate the replacement for that justice, (2) the belief that justices tend to be loyal to the party of the president who appointed them to the Court, and (3) the conjecture that justices tend to display this loyalty by timing their resignations to give a president of that party the opportunity to appoint their judicial successor. Thus, the politicized departure hypothesis is as follows: (1) Other things equal, if the incumbent president is of the same party as the president who nominated the justice to the Court, and if the incumbent president is in the first two years of a four-year presidential term, then the justice is more likely to resign from the Court than at times when these two conditions are not met.
Retirement and Death in Office of U.S. Supreme Court Justices, by ROSS M. STOLZENBERG and JAMES LINDGREN, May, 2010 (citations omitted).
The study found that history has shown that, despite the ability to generally stay until death, as end-of-life nears, with the existence of a pension, justices have tended to retire, rather than die in office. Those who have chosen to stay until death are dedicated politicos, as one of my college professors (Dr. Lanier) used to call them, acting not in their own personal best interests, but rather for pure politics. I think he used to say, “Don’t kid yourselves, these people are seasoned politicos.” Turning to the study at hand, the average service period of a SCOTUS justice over the course of the last 230 years of American jurisprudence has been about 25 years. According to the science, as the age of a justice advances, the expected annual odds of their retirement are about a 6% chance per additional year of life. Then comes the politics, which skews the numbers according to the political party of the president vs. the justice:
If the incumbent president is of the same party as the president who nominated the justice to the Court, and if the incumbent president is in the first two years of a four-year presidential term, then the justice has odds of resignation that are about 2.6 times higher than when these two conditions are not met.
In addition, political climate effects on death in office are consistent with the politicized departure hypothesis. When the incumbent president is of a different party than the president who appointed the justice, then the justice’s death-in-office odds are about tripled, compared with when the appointing president and the incumbent president are members of the same party.
Retirement and Death in Office of U.S. Supreme Court Justices, by ROSS M. STOLZENBERG and JAMES LINDGREN, May, 2010.
That’s the category RBG fits into. The likelihood of RGB dying in office based purely on the politics of replacing her, was about 3 times higher than the likelihood of her having retired had Trump not won in 2016. That seems about right to me. She’s had cancer for some period of time. Had Hillary won in 2016, it seems rational to believe she would have voluntarily retired sometime after November of 2016. Still though, RGB’s choice bucks the trend. Looking at history, the trend seems to have been towards increasing voluntary retirement of Supreme Court justices, rather than through death, which was more pervasive in the 19th century:
The evidence shows that RGB was a diehard politico. She went against the grain in choosing not to retire, and instead to attempt to outlive a Trump presidency. Her anti-Trump politics were well-known.
Washington (CNN) Supreme Court Justice Ruth Bader Ginsburg’s well-known candor was on display in her chambers late Monday, when she declined to retreat from her earlier criticism of Donald Trump and even elaborated on it.”He is a faker,” she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”
https://www.cnn.com/2016/07/12/politics/justice-ruth-bader-ginsburg-donald-trump-faker/index.html
There was more:
Ginsburg had told a Times reporter, “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president. For the country, it could be four years. For the court, it could be—I don’t even want to contemplate that.”
https://www.thedailybeast.com/cheats/2016/07/14/ginsburg-on-trump-comments-i-m-sorry
Mind you, she made these comments about Trump before he was elected. They were made during the 2016 election – only months away from election day. Wisely, she publicly apologized:
Supreme Court Justice Ruth Bader Ginsburg apologized Thursday for comments she made about Donald Trump in The New York Times over the weekend. “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them,” she said in a statement. “Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”
https://www.thedailybeast.com/cheats/2016/07/14/ginsburg-on-trump-comments-i-m-sorryhttps://www.thedailybeast.com/cheats/2016/07/14/ginsburg-on-trump-comments-i-m-sorry
I can agree with that sentiment. Particularly inappropriate was the fact that she said this not while Trump was President, but during the campaign. So she’s not criticizing the Executive Branch, she ‘s criticizing a candidate. That seems dangerous to me. By all accounts she was extremely smart, and was an effective proponent of her point of view. She certainly wasn’t afraid of having her own opinions. You may not know this, because the media probably hasn’t spoken of it much, but RBG also criticized Colin Kaepernick, calling his national anthem kneeling/protest “dumb” – though she later apologized for that too.
You may have seem memes about RBG in reference to advising Egypt away from copying the U.S. Constitution…. In a 2012 interview with an Arabic television station, RBG publicly reccomended that the Egyptians, after overthrowing their old government, NOT look to the U.S. Constitution as a model for their new government. This wasn’t taken out of context, either. Don’t just read the meme, or a biased “fact-check” article. Go ahead and read her full quote:
Ruth Bader Ginsburg, Jan. 30, 2012: You should certainly be aided by all the constitution writing that has gone on since the end of World War II. I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012. I might look at the constitution of South Africa — that was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights, had an independent judiciary. It really is, I think, a great piece of work that was done. Much more recently than the U.S. Constitution, Canada has the Charter of Rights and Freedoms — dates from 1982. You would almost certainly look at the European Convention on Human Rights. So, yes, why not take advantage of what there is elsewhere in the world?
In her own words, as a sitting Supreme Court justice, she prefers the South African constitution, or the Canadian “Charter of Rights and Freedoms,” neither of which include any real right of the people to bear arms. South Africa itself is a hot-mess, and has a constitution which is full of problems, including the fact that it created a socialistic system of government control of over 700 businesses, as well as a disaster as far as racial relations goes. Canada’s ultra-leftwing charter is like taking the radical left’s social justice platform and turning it into constitutional law. It may be good from the left’s political perspective, but it would be antithetical to the governmental constraint and limited government required from the U.S. Constitution.
Clearly RGB knew it would be much easier for the left to impose their agenda on a populace without a constitution such as ours in place. That’s her opinion, which is likely the reason she chose to play politics until the very end. The beauty and the genius of the U.S. Constitution is that its can be amended at any time. Bad stuff can come out. Good stuff can go in. You just have to follow the process – which requires broad support by the people. It’s not something done by swamp creatures alone.
Therefore the question is not whether the President should nominate a new justice – it’s whether the President should delay doing so, just in case he loses the election, because political pressure from the opposition is demanding it. There is no constitutional basis for such a request – only politics. This, mind you, is coming from the same political opposition who impeached the President, in an election year. The President needs only to ask himself one question. What would the Democrats do? There’s his answer.