Ruth Bader Ginsburg is back home after an emergency trip to Johns Hopkins Hospital in Baltimore early Tuesday and ready to go back to work. The incident caused the hearts of Jews and Democrats skip a beat while Donald Trump danced a jig with Mitch McConnell.
The “notorious RBG,” as she’s affectionately known, at 87 is the oldest member of the Court. She has been through assorted health crises, including surgeries for cancer of the colon, pancreas and lungs, and has rebounded rapidly every time, much to the chagrin of conservatives drooling at the prospect of replacing the most liberal member of the Court with one of their own young enough to match her 27 years on the bench.
Filling federal courts with conservatives was a successful campaign issue for Trump four years ago and he is pushing the issue again in 2020. His opponent, former Vice President Joe Biden, also intends to focus on the court, pointing to Trump’s legacy of more than 200 new conservative judges.
Whoever wins in November is likely to have several vacancies to fill on a court where the average age is over 65.
The two oldest associate justices are liberals, Jewish and in their 80s. Stephen Breyer, 81, joined the court in 1994, the year after Ginsburg, who is the first Jewish woman to sit on the Supreme Court. The youngest liberal member of the court is Elena Kagan, 60, also Jewish.
With RBG and Breyer unwilling to give Trump the opportunity to replace them with philosophical opposites, the White House is reportedly pressing the two oldest conservative justices, Samuel Alito and Clarence Thomas, to step down now as a hedge against Biden’s election. Alito, 70, is said to be seriously considering it, according to conservative columnist Hugh Hewitt, but Thomas, 72, the only black justice, last year said he had no intention of quitting.
If Trump does get to nominate another justice this year, McConnell, the Senate majority leader, has said he will do everything in his power to ram confirmation through, as he has more than 200 other federal court nominations. Even during an election year.
Four years ago, when there was a Democrat in the White House and a vacancy on the Court, McConnell blocked Barack Obama’s nomination of Judge Merrick Garland, arguing that it was an election year and voters should decide who picks the next justice. That was then and now McConnell has said if the same situation recurs he would expedite the confirmation of anyone Trump wants.
That, and McConnell’s reputation for obstructionism, has become an issue in his unexpectedly tight reelection bid this year. He is seen as Trump’s chief enabler not only on nominations but in the impeachment trial and everything else this corrupt president demands. McConnell is even losing the support of his three daughters in his race against former Marine combat fighter pilot Amy McGrath, writes Jane Mayer in a New Yorker profile of the Senate leader.
Trump is intensifying his focus on the courts to atone to his conservative and evangelical base for his nominee Neil Gorsuch straying from the reservation by supporting civil rights for LGBTQ people.
Protection of civil liberties and civil rights remain high on the Jewish community’s agenda and another reason Biden is expected to get 75 percent or more of the Jewish vote this year.
Of particular concern to Jewish community is the persistent drive by administration and conservatives on federal courts to blur the lines of separation between religion and state. While the president’s Orthodox Jewish supporters may welcome that focus, particularly federal funding for their religious schools, a strong majority of Jews see it as a threat to the religious freedom of faith minorities.
It is not just the wall of separation that Trump wants to dismantle but also other protections of the First Amendment, which he has treated more as suggestions than absolutes. He wants to throw journalists in jail, challenge broadcasting licenses, and owners of media outlets he deems hostile, send troops to violently break up peaceful demonstrations as he did to open way for his photo op holding a Bible in front of a church. At every opportunity, he stresses his support for the Second Amendment and tells listeners “the Democrats want to take away your guns.”
Although Trump, like every president, prefers to nominate younger jurists who can serve for decades, he is said to be leaning toward Attorney General William Barr. Once a respected conservative lawyer, Barr, 70, sold his soul to Trump and would reportedly like to end his legal career on the Supreme Court. He is the architect of Trump’s claim of “absolute immunity” that was shot down by a unanimous Supreme Court last week.
It is unlikely Trump ever read Article II of the Constitution before he declared it gave him “the right to do whatever I want as president,” but it fits Barr’s philosophy of “unchecked presidential power,” according to his predecessor in George W. Bush’s Justice Department.
In a pair of 7-2 decisions, with Trump’s two appointees, Gorsuch and Brett Kavanaugh, in the majority, the president lost his bids to ignore subpoenas from Congress and the New York district attorney to turn over his records. He may have lost the legal battle but won a political victory because final action was delayed until after the election.
The defection of the pair angered Trump, who tweeted, “Do you get the impression the Supreme Court doesn’t like me?” and prompted him to ratchet up the issue in his campaign.
If Trump were a student of history he might appreciate Dwight Eisenhower’s answer when asked if he’d ever made any mistakes. “Yes: two. And they are both sitting on the Supreme Court.” That may be the only similarity between the two presidents.
Of Trump’s 200 federal judges, 70 percent are white men, only 28 are people of color. He has named no African-Americans to appellate courts and only one Latina. Many have had little or no judicial experience and have been deemed unqualified by the American Bar Association.
Biden has said that if elected his first appointment to the Supreme Court would be an African-American woman.
This election could go to the courts if Trump loses since he is likely to charge the only way his opponent could win is if the election was rigged. He is not only a sore loser but also a sore winner; he still claims – falsely — Hillary Clinton’s 2.9 million popular vote margin was solely due to illegal voting.
Trump is already preparing the stage with his baseless charges that mail-in voting is rife with fraud and should be banned. He got some support from conservatives on the high court blocked a move to make it easier for Alabama voters to use absentee ballots.
Few issues will have such far-reaching importance as federal judges with lifetime appointments. The damage Donald Trump has done to the federal judiciary and thus the nation will live on long after he is relegated to history’s garbage heap.