Justice Ginsburg’s Health a Latent Issue

Justice Ruth Bader Ginsburg is again experiencing health problems, although they are being portrayed as not serious. Adam Liptak of the New York Times is nevertheless worried:

Justice Ruth Bader Ginsburg was admitted to Johns Hopkins Hospital in Baltimore on Friday night after experiencing chills and fever earlier in the day, a Supreme Court spokeswoman said on Saturday.
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Justice Ginsburg, 86, has had a series of health scares lately, including surgery for lung cancer and radiation treatment for pancreatic cancer in the last year. Over the years, Justice Ginsburg has also had surgery for early-stage pancreatic cancer in 2009 and treatment for colon cancer in 1999.

Ginsburg no doubt would like to retire, but understandably is holding out for a Democratic president:

During the Obama administration, some liberals urged Justice Ginsburg to step down so that President Barack Obama could name her successor. She rejected the advice.

“I think it’s going to be another Democratic president,” Justice Ginsburg told The Washington Post in 2013. “The Democrats do fine in presidential elections; their problem is they can’t get out the vote in the midterm elections.”

Liptak makes this historical observation, which surprised me:

Justice Ginsburg was named to the court in 1993 by President Bill Clinton. She was the first Democratic appointment since 1967, when President Lyndon B. Johnson nominated Thurgood Marshall.

The Republicans had a great opportunity there, but failed to take full advantage due to some poor selections.

Liptak’s assessment of the Court comes from a liberal perspective:

President Trump has appointed two members of the Supreme Court, Justices Neil M. Gorsuch and Brett M. Kavanaugh. The last president to appoint more than two justices in his first term was Richard M. Nixon, who put four on the court from 1969 to 1972. Those appointments spelled the end of the liberal court that had been led by Chief Justice Earl Warren and created a conservative majority that remains to this day.

Would that it were true! I am not sure when the Court last had a truly conservative majority. It might have one now; time will tell.

The current court is closely divided, with five Republican appointees and four Democratic ones. A third Trump appointee would not only make the balance more lopsided but would also almost certainly move the court’s ideological center to the right.

Yes, of course. Justice Ginsburg’s health could turn out to be a wild card both in the current impeachment proceedings and in the 2020 election. Should she become unable to continue serving in the near future–improbable, but by no means out of the question–the Democrats will take the position that a president who is in the midst of impeachment proceedings should not name a Supreme Court justice, and they may claim that any justice named in such circumstances is illegitimate. Then, of course, the election will be upon us, and a Supreme Court confirmation hearing in that context could make the Kavanaugh fiasco look like a picnic.

Liptak’s Times article has an elegiac quality. Much of it reads like an obituary; in fact, it may be drawn from the Ginsburg obituary that the paper presumably has already prepared. Liberals can see the dream of a hard-left Supreme Court majority drifting away. If President Trump is re-elected–and maybe if he isn’t–that dream will turn to ashes for at least a generation.

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