Ruth Bader Ginsburg, having recently expressed regret for commenting on a matter she shouldn’t have (the candidacy of Donald Trump) is at it again. At an event at Georgetown Law School, Ginsburg complained about the Senate’s inaction on the Merrick Garland nomination. She said:
I do think cooler heads will prevail, I hope sooner rather than later. The president is elected for four years not three years, so the power he has in year three continues into year four. Maybe members of the Senate will wake up and appreciate that that’s how it should be.
Ginsburg went on to express doubt over whether a lawsuit challenging the Senate’s inaction would accomplish anything.
Ginsburg’s view that “the power [the president] has in year three continues into year four” is true in a formal sense. However, as a practical matter, a president’s real power almost always diminishes in year eight. That’s why they call presidents who are near the end of the line “lame ducks.”
A president always has the power to nominate people to the bench. The Senate always has the power to reject these nominees in one way or another. The Senate is always likely to exercise that power in a president’s eighth year.
Does anyone believe that Ginsburg would be making her lame argument if a Democratic Senate were blocking a conservative nominee for the Supreme Court in a Republican president’s last year? I didn’t think so.
In addition to being inane, Ginsburg’s commentary is inappropriate. Ed Whelan explains:
Senate Democrats are trying to have their dispute over the Garland nomination play a role in every Senate race this fall. How does Ginsburg think it appropriate to weigh in on this matter and to charge that Senate Republicans are being hotheaded and irresponsible?
Ed also finds it inappropriate for Ginsburg to be weighing in on the prospects of lawsuits challenging the Senate’s inaction, one of which, he says, is pending.
If Senate Republicans are having second thoughts about blocking Judge Garland, Justice Ginsburg’s naked partisanship should reinforce their resolve. When Bill Clinton nominated her, there were smart conservatives who applauded the selection, viewing Ginsburg as good as we could expect from a Democratic president — in other words, making the same kinds of arguments we hear in favor of Judge Garland now.
Ginsburg turned out to be a reliable down-the-line leftist, voting to advance the left-liberal agenda in virtually every big case. And in recent years, her leftism has manifested itself outside of the court house.
I doubt that a Justice Garland would engage in inappropriate extra-judicial behavior. But there is no good reason to believe that his Supreme Court voting pattern would differ materially from Ginsburg’s.