The Trump Administration is preparing for pro-abortion Supreme Court Justice Ruth Bader Ginsburg to retire. That’s because, for the first time during her tenure on the nation’s highest court, Ginsburg is not attending Supreme Court sessions.
Given her advancing age and health concerns, political observers on both sides are wondering whether or not Ginsburg will be able to continue doing her work on the high court. Because a situation could presented self soon where President Trump would need to make a third Supreme Court nomination, Trump Administration officials are already doing the legwork needed to prepare for such a possibility.
The White House is reaching out to political allies and conservative activist groups to prepare for an ailing Justice Ruth Bader Ginsburg’s possible death or departure from the Supreme Court — an event that would trigger the second bitter confirmation battle of President Donald Trump’s tenure.
The White House “is taking the temperature on possible short-list candidates, reaching out to key stakeholders, and just making sure that people are informed on the process,” said a source familiar with those conversations, who spoke on background given the delicate nature of the subject. “They’re doing it very quietly, of course, because the idea is not to be opportunistic, but just to be prepared so we aren’t caught flat-footed.”
Ginsburg had a pulmonary lobectomy, the Supreme Court said in a statement, and her doctors said that post-surgery there was “no evidence of any remaining disease.” She has also recovered from several past health scares. But 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.
The nine-member court is currently divided 5-4 between its conservative and liberal wings. Ginsburg’s departure would allow Trump to create the Court’s strongest conservative majority in decades, a scenario sure to bring intense opposition from Democrats and liberal activists still furious over the October confirmation of Justice Brett Kavanaugh.
The court was thought to be 5-4 pro-abortion at best before Supreme Court Justice Anthony Kennedy retired. Pro-life Americans are hopeful that Justice Bret Kavanaugh could be the 5th vote needed to overturn Roe and once again allow states to protect unborn babies from abortions. But Justice Clarence Thomas is the only member to have public indicated he is wiling to overturn Roe. Whether Justices Samuel Alito, Neil Gorsuch and Chief Justice John Roberts would join him is another question, although each justice has consistently sided with pro-life advocates on previous cases.
Should Ginsburg pass away or no longer be able to serve on the Supreme Court due to health concerns, a replacement justice would almost definitely shift the court in the pro-life direction.
If Ginsburg retires, the next battle could be even more vehement and divisive than the confirmation battle over Kavaaugh.
“It would be a brutal confirmation,” said John Malcolm, director of the Heritage Foundation’s Meese Center for Legal and Judicial Studies. “The first two were not easy at all, but this would be much harder in this respect: When Neil Gorsuch was the nominee, you were replacing a conservative with a conservative. With Kavanaugh, you were replacing the perennial swing voter, who more times than not sided with the so-called conservative wing, so that slightly solidified the conservative wing.”
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“But if you are replacing Justice Ginsburg with a Trump appointee, that would be akin to replacing Thurgood Marshall with Clarence Thomas,” Malcolm added. “It would mark a large shift in the direction of the court.”
Recently, Ginsburg fully recovered from a November health scare, which saw the liberal darling fracture three ribs in a fall at the high court.
Speaking Saturday to NPR’s Nina Totenberg at the Museum of the City of New York, Ginsburg said she was “almost repaired” following the fall and had resumed her normal fitness regime.
“Yesterday was my first day doing my whole workout routine,” she said.
The fall did not seem to inhibit Ginsburg’s work. Though she was absent for Justice Brett Kavanaugh’s ceremonial investiture Nov. 8, she did not miss any official business. Nine days after her fall, the justice was present at the White House when President Donald Trump awarded the Medal of Freedom to the late Justice Antonin Scalia.
Over the summer, Ginsburg said she has no plans to retire any time soon.
A reliable supporter of abortion on demand, Ginsburg is 85 years old. But during a public appearance, she told CNN she plans to stay on the court until she is 90.
“I’m now 85,” Ginsburg said. “My senior colleague, Justice John Paul Stevens, he stepped down when he was 90, so think I have about at least five more years.”
The Washington Examiner reports Ginsburg discussed her plans for retirement in New York City after a play about the late Justice Antonin Scalia.
She already has hired law clerks for the next two years, according to the report.
There has been speculation that Ginsburg might retire while President Donald Trump is in office, and open up the opportunity for Trump to appoint three conservative justices to the high court. However, Ginsburg has repeatedly stated that she will not retire while she still is able to serve.
Ginsburg is beloved by abortion activists because of her decisions on the high court since the 1990s. A new film, scheduled for release on Christmas, will glorify her liberal activism.
“A woman’s control of her own body, her choice whether and when to reproduce, it’s essential to women and it’s most basic for women’s health,” she once said.
In 2016, she was one of the five justices who sided with abortion activists in Whole Woman’s Health v. Hellerstedt, which struck down Texas abortion clinic regulations.
In a rare interview with the New York Times in 2016, Ginsburg said laws should not deny a woman “her right to choose” to abort her unborn baby. She and four other justices ruled that these safety regulations were an “undue burden” on women’s access to abortion.