Health and timing. Those two factors will have a huge effect in determining the winners and losers for conservatives and liberals when the competition involves the Supreme Court.
That means we begin with the perpetually resilient Ruth Bader Ginsburg.
Appearing recently at the annual Washington Convention Center gathering that is called the Library of Congress National Book Festival, which is a literary version of the ever-bustling Grand Central Station, Ginsburg offered this bit of news right off the top: “How am I feeling? Well, first, this audience can see that I am alive, and I am on my way to being very well.”
That pronouncement received raucous cheers from an amped-up, standing-room-only audience of more than 4,000.
Then, moderator Nina Totenberg, who covers the Supreme Court for NPR, asked Ginsburg: “Why are you here instead of resting up for the (Supreme Court) term?”
Ginsburg, recovering from treatment for a tumor on her pancreas, responded: “The term, we have a month or so yet to go. I’ll be prepared when the time comes.”
Ginsburg has maintained a cult-like following for years. Even though she is diminutive in size, RBG has been a staunch powerhouse for the nation’s liberals, championing the rights of women and people of color.
Every time she has a health scare — including cancer issues, heart ailments, broken ribs in the past 10 years — Ginsburg’s fans voice a collective “Oh, no — not again.”
Just hold on, please, they say.
Because of: (1) The Donald Trump factor, and (2) The Clarence Thomas issue.
The context: Liberals are clutching their lucky charms as they pray and plead that the 86-year-old Ginsburg can survive Trump’s first term. Then, hope that a Democrat wins the 2020 election. That way, a Democratic president gets the privilege of nominating her successor.
Be logical here. Suppose Trump wins again and Republicans in 2020 maintain control of the U.S. Senate, which presides over the court nominees’ confirmation hearings. Ginsburg would be 91 years old at the end of Trump’s second term. How long can she continue? Five more years on the court seems unlikely.
John Paul Stevens was the second-oldest justice, age 90 years and two months at his retirement in 2010. Eight months behind Oliver Wendell Holmes Jr., who retired at 90 years and 10 months in 1932. And note that Anthony Kennedy retired from the Supreme Court in 2018, at age 82.
Conservatives outnumber liberals 5-4 on the High Court. Therefore, if Ginsburg retires, the count, presumably, would be 6-3 if Trump makes the selection. It would be 7-2 if the only other octogenarian, 81-year-old liberal Stephen Breyer, who like Ginsburg was a Bill Clinton appointee, retires during a possible Trump second term.
Thurgood Marshall, the grandson of a slave, retired from the Supreme Court in 1991 because of health reasons at age 83. Republican President George H.W. Bush chose his successor, hard-core conservative Clarence Thomas, who replaced Marshall on Oct. 23 in 1991.
Now, the what-if game. If Marshall could have lasted on the High Court an additional 15 months, history likely would have markedly changed. Remember, H.W. Bush lost his re-election bid to Clinton in November, 1992. Marshall died four days after Clinton’s inauguration. If Marshall were still on the bench around inauguration time, then retired soon thereafter, Thomas likely never would have been a Supreme Court justice. Because the selection would have been Clinton’s choice, instead of Bush’s, for Marshall’s vacancy.
So, Ginsburg one day could be in a similar situation as Marshall.
Timing. It’s a fine line, indeed.
That line is what keeps RBG’s fan base up at night. Totenberg asked her, “How do you just keep trucking?” Ginsburg responded, “For one thing, I love my job. It’s the best and the hardest job I have ever had. It is what has kept me going through four cancer battles.”
Ginsburg was promoting her two-volume book, “My Own Words,” with the second volume still a work in progress with her biographers — Georgetown law school professors Mary Hartnett and Wendy W. Williams, both of whom appeared with RBG.
Other famous authors, biographers and historians, such as David McCullough and Michael Beschloss, weren’t even close to selling out Ginsburg’s ballroom at the National Book Festival, which drew 200,000 in total foot traffic.
That’s why some observers call Ginsburg “the Beyonce of the Supreme Court,” because she assuredly will draw a crowd. However, Ginsburg prefers singer/actress J-Lo, who during the summer called her requesting a visit. Jennifer Lopez and her fiance, Alex Rodriguez, soon met Ginsburg in her court chambers. “She mostly wanted to ask if I had any secret about a happy marriage,” RBG explained.
For many attendees at the National Book Festival, Ginsburg’s public appearance likely will be the first and last time they see her in person. In fact, one middle-age woman related, “I flew down here (to Washington) from Boston mainly to see her.”
Another said she drove four hours from Roanoke, Va., for the same reason. To see a rock-star justice … while there is still time.