RBG’s Hubris May Be Her Legacy

This piece first appeared in American Greatness on January 2, 2019 (here). Thanks to Instapundit (here), Real Clear Politics, and How Appealing. And SCOTUSblog (here)!

The 85-year old Ruth Bader Ginsburg, appointed to the U.S. Supreme Court by President Bill Clinton in 1993, is approaching her 25th anniversary as a justice. She is historic in many respects: the second female to serve on the High Court, the first Jewish female justice, and the longest-serving Jewish justice ever. Her record as a reliable liberal vote on the court, along with her well-publicized background as a trail-blazer for women’s rights, has made her an icon on the Left—celebrated as the “Notorious RBG” and featured in the recent film On the Basis of Sex. Her ultimate legacy, however, may be that her stubborn—and, in hindsight, ill-considered–refusal to retire while President Obama was in office may allow the Left’s nemesis, President Donald Trump, to appoint her successor.

The potential for this scenario, which would tilt the court 6-3 in favor of originalists/conservatives (assuming Trump fills the vacancy from his solid list of candidates), is beginning to sink in among the liberal media in light of Ginsburg’s latest cancer scare, and is provoking a full-blown panic. The prospect of Trump selecting her replacement as his third SCOTUS pick has caused some of Ginsburg’s previously-fawning admirers to turn against her, as their hatred for Trump overwhelms their loyalty to her. As Mother Jones acidly noted, after her most recent fall but before her latest cancer surgery, “The situation today is one many liberal lawyers feared years ago and worked hard to avert. But the feisty justice rebuffed them all, a decision that makes all the hero worship hard for some of us to stomach.”

While I don’t wish to speak ill of an elderly jurist in failing health, and certainly don’t wish to see her condition worsen, realistically her prognosis is not good.  Ginsburg, who previously survived bouts with colorectal and pancreatic cancer, was not exactly robust prior to her recent surgery to remove two malignant “nodules” from her left lung. Moreover, she received a cardiac stent in 2014, has fallen down more than once (most recently breaking three ribs), and was seen falling asleep during the State of the Union address in 2012 and 2015. She has been observed nodding off on the bench for years. Despite her much-vaunted exercise routine, Ginsburg’s physical appearance reveals that Ginsburg is obviously frail, speaks haltingly and faintly, and walks with difficulty.

None of this is surprising. Ginsburg, who will turn 86 in March, is the oldest justice on the court. Aging ineluctably leads to physical (and, often, mental) decline, and eventually results in death. Despite her intention, announced in July, to serve “at least five more years,” the Almighty may have other plans. Federal judges, including Supreme Court justices, have life tenure, meaning that they can choose—absent disability—to serve until death. But few do so. As they approach looming mortality, most justices retire at an advantageous time to allow a “friendly” administration (i.e., one representing the same political party as the president who appointed them) to select their successor. Justice Anthony Kennedy’s retirement was the most recent example of this tradition.

Following Obama’s reelection in 2012, many leaders in the liberal community hoped that Ginsburg would retire so that Obama could appoint a younger, equally-reliable activist in her place—in the vein of Sonia Sotomayor. When no action was forthcoming from Ginsburg, the Left began a public lobbying campaign.  The National Journal ran a piece in December 2013 with the title “Justice Ginsburg: Resign Already!” No subtlety there. As the clock continued to run on Obama’s final term, the campaign became even more heavy-handed. In March 2014, left-wing legal scholar Erwin Chemerinsky (now Dean of UC Berkeley’s law school) wrote in the L.A. Times that “Ginsburg should retire from the Supreme Court after the completion of the current term in June,” arguing that “only by resigning this summer can she ensure that a Democratic president will be able to choose a successor who shares her views and values.”

Ever the diplomat, Chemerinsky noted that “I do not minimize how hard it will be for Justice Ginsburg to step down from a job that she loves and has done so well since 1993. But the best way for her to advance all the things she has spent her life working for is to ensure that a Democratic president picks her successor.” Waiting too long, Chemerinsky cautioned, could lead Senate Republicans to delay confirmation of her successor in the hope that the White House would change hands. This, of course, is exactly what happened when Obama nominated Merrick Garland to fill the vacancy created by the death of Justice Scalia in 2016. Still, the stubborn Ginsburg was not swayed. She had not secured her seat on the High Court until the relatively-late age of 60, and wasn’t interested in cutting her tenure short.

Ginsburg explained in an interview with the New York Times why she planned to ignore calls for her to retire: “There will be a president after this one and I’m hopeful that the president will be a fine president.” She presumably expected that Hillary Clinton would defeat the Republican nominee, who turned out to be Donald Trump (of whom she had injudiciously expressed her low opinion). Perhaps the blind adulation of her cult-like followers went to Ginsburg’s head. Perhaps the death of her beloved husband of more than 50 years, Martin, in 2010 left her with little else to live for. In any event, Ginsburg chose not to retire, betting that when the right time came, her seat would be in safe hands.

She may have chosen poorly. In an article titled “What the Cult of Ruth Bader Ginsburg Got Wrong,” Mother Jones harshly condemns Ginsburg’s failure to retire under Obama: “No amount of swag or hagiography can obscure the fact that, while Ginsburg is responsible for a great number of landmark legal decisions, her legacy may be sorely tarnished by one truly terrible one: refusing to retire when President Barack Obama could have named her replacement.” Ouch. Although I can feel the Left’s pain, and sincerely wish Ginsburg a full recovery and long life, schadenfreude compels me to recognize the opportunity this presents for President Trump: the potential for decisive, long-term realignment of the court. A 6-3 Republican majority would compensate for occasional wavering by Chief Justice Roberts. Conservative hegemony would prevail in the court for decades.

Mother Jones realizes this, and if Ginsburg’s health quickly deteriorates (as some medical experts predict) others on the Left will follow suit. The RBG cult will turn on her. The Mother Jones article ends with these scornful words: “By refusing to gracefully transition off the court when Obama could have named her successor, she has raised the very real risk of her seat being filled by someone who will spend a generation trying to undo all she worked for. If that happens, RBG will become truly notorious.”

RBG’s hubris may be her legacy, and her gift to President Trump.


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