The news this weekend that Supreme Court Justice Ruth Bader Ginsburg is again being treated for pancreatic cancer was bad news for progressives, first because she has become a revered, even beloved, judicial figure in recent years. But beyond that, the possibility of a vacancy on the Supreme Court prior to the 2020 elections is a contingency with enormous consequences.
Yes, the 86-year-old jurist has survived cancer scares before, as Politico reminds us:
Ginsburg, who was nominated to the court by President Bill Clinton in 1993, has survived multiple cancer diagnoses — she was treated for colorectal cancer in 1999 and an earlier bout of pancreatic cancer in 2009.
[On this latest occasion Ginsburg] “tolerated treatment well,” and apart from canceling an annual summer visit to Santa Fe, she “has otherwise maintained an active schedule,” the court said. She “will continue to have periodic blood tests and scans,” although “no further treatment is needed at this time.”
Today she is receiving an honorary degree from the University of Buffalo, and appears to be in good form:
If her health takes a turn for the worse and she is forced to step down, however, Senate Republican Leader Mitch McConnell has left no doubt that he’ll move to confirm a Trump-nominated Justice even if the vacancy arises during the 2020 election year. He is choosing disingenuously to distinguish his refusal to begin the confirmation process for Merrick Garland’s nomination by Barack Obama throughout 2016 from a 2020 vacancy on grounds that the Senate and the presidency were controlled by different parties back then. Knowing McConnell and his exultation in the exercise of partisan power, he will greatly enjoy Democratic or mainstream media howling about the hypocrisy of this position.
The only real question is how late in 2020 might Trump and McConnell still be willing and able to fill a SCOTUS vacancy. I’d say it could happen even after election day, assuming Trump is not reelected. Trump already has a pre-vetted list of SCOTUS possibilities, and a well-oiled machine run by the Federalist Society and the Heritage Foundation to finalize choices and generate support for them among conservative activists in and beyond the legal profession. Chief Justice John Roberts was confirmed in just 19 days. With cloture to end a filibuster of a Supreme Court confirmation now requiring a simple majority, Senate Democrats would have to flip four Republican senators (while holding all of their own votes) to block a SCOTUS confirmation so long as the current, 116th Congress is in session–i.e., before January 20, 2021. There are only a few even theoretically winnable Republican senators in the supremely partisan moment that SCOTUS confirmations have become, and even those facing major 2020 challenges are likely to worry more about offending their conservative-base voters than about an adverse public reaction to party-line solidarity.
Even if Justice Ginsburg soldiers on (and nothing happens to a younger Justice, like, say, 81-year-old Stephen Breyer), the SCOTUS issue will almost certainly be a major issue in the 2020 presidential and Senate elections, probably to an unprecedented degree. By almost all accounts, conservatives are one Justice short of the comfortable margin they’d need to reverse major Supreme Court precedents such as Roe v. Wade or the constitutional validation of the Affordable Care Act. It’s unlikely that today’s Court will remain unchanged until 2025, when a reelected Donald Trump would finally be forced to retire. A new Democratic president, of course, might have the opportunity to reverse the conservative tide, or at least select younger replacements for retiring liberals.
If a vacancy does arise next year, Trump could become the first president since Richard Nixon to appoint three Supreme Court Justices in his first term (by contrast, Jimmy Carter appointed none at all), amplifying his already massive effect on the federal judiciary and vindicating the gamble Court-obsessed cultural conservatives made in backing this strange and erratic man before and after he won the Republican presidential nomination in 2016. And if a vacancy remains just over the horizon, progressive voters may finally catch up with conservatives in prioritizing the impact on SCOTUS in presidential elections. Left-of-center voters who didn’t bother to show up in 2016 or who cast a protest vote for Jill Stein or Gary Johnson already bear a heavy moral burden for helping lift Trump to the presidency. If he wins reelection, that burden could grow to include a radical reshaping of constitutional law lasting for decades.