NRL News

Ginburg’s absence from oral arguments stirs talk about the confirmation battle that would ensue if she steps down

by | Jan 11, 2019

By Dave Andrusko

Supreme Court Justice Ruth Bader Ginsburg

It’s the way news often works in Washington, DC. Politico ran a story yesterday that in light of a recent health scare Supreme Court Justice Ruth Bader Ginsburg went through, only stated the obvious —”Trump White House urging allies to prepare for possible RBG departure.” This gives reporters and columnists a chance to revisit last year’s vicious assault on now-Justice Brett Kavanaugh and anticipate an even uglier confirmation battle if Ginsburg leaves the High Court while Donald Trump is president.

In case you haven’t followed what Politico describes as the “ailing Supreme Court Justice,” on December 21 Ginsburg had surgery (a pulmonary lobectomy) to remove two cancerous growths from her lungs. What moved the discussion from the background to the foreground is that this week Justice Ginsburg missed oral arguments, something that has never happened in her 25 years on the Supreme Court.

In a statement the Supreme Court said there was “no evidence of any remaining disease,” but this is not the justice’s first serious health scare. “Ginsburg has also battled cancer twice before. In 1999, she was treated for colon cancer, and in 2009, she was treated for pancreatic cancer,” The Washington Examiner’s Melissa Quinn reported.

Politico’s Eliana Johnson and Gabby Orr note

her departure from the Court would allow Trump to nominate a third Supreme Court justice — the most in one presidential term since President Ronald Reagan placed three judges on the highest court during his second term.

Ginsburg’s absence from the bench this week, wrote Johnson and Orr,

has become a cause of concern because of her remarkable past attendance streak, which persisted through two previous cancer treatments and a number of other health scares. At the outset of oral arguments on Monday, Chief Justice John Roberts said she was “unable to be present” but would participate in the cases nonetheless, reading briefs, filings, and a transcript of the sessions.

Supreme Court appointments are indefinite, and a seat is considered empty only if a justice dies or retires from the court. In the event a judge is unable to perform his or her duties, the only clear recourse is Congressional impeachment.

Ginsburg told an audience in mid-December that she “will do this job as long as I can do it full steam.”

As you would expect 4/5ths of the Politico story dealt with what everyone knows would be a “bruising” confirmation, to put it in the mildest possible terms. Johnson and Orr report

The White House counsel’s office and senior aides on the Senate Judiciary Committee, now chaired by Sen. Lindsey Graham (R., S.C.), have begun drafting a shortlist of potential court nominees. It features judges the president has considered for previous vacancies along with some new names. Many of them are women, sources say.

Categories: Supreme Court