Justice Ginsburg's Last Words

"My most fervent wish is that I will not be replaced until a new president is installed."

|The Volokh Conspiracy |

Nina Totenberg recounts Justice Ginsburg's final message to the public:

Just days before her death, as her strength waned, Ginsburg dictated this statement to her granddaughter Clara Spera: "My most fervent wish is that I will not be replaced until a new president is installed."

Ginsburg could have said, "My most fervent wish is that I will not be replaced until after the election," or even "After the inauguration." Rather, she said she did not want to be replaced "until a new president is installed." If President Trump wins re-election, then a "new president" will not be "installed" until 2025. (Barring impeachment or resignation, of course.) If Ginsburg meant these words literally, then her seat would remain vacant throughout the entirety of Donald Trump's second term. Merrick Garland could not be reached for comment.

I am disappointed, but not surprised by Ginsburg's parting shot. First, he has placed even more pressure on the Supreme Court, which was already under great stress. Second, she has placed a bullseye on whomever President Trump nominates. "Honor her wishes" will become the new "Win one for the Gipper." Third, if Trump does fill the vacancy, Ginsburg's words will be used as the rallying cry for Court Packing.

Imagine for a moment that Justice Scalia, on his death bed, said that "My most fervent wish is that I will not be replaced until a new president is installed."

This is not the first time Ginsburg hoped a different President replaces her. In July 2016, she gave an interview to Mark Sherman of the Associated Press. Ginsburg said, in so many words, that she wanted Hillary Clinton to replace her:

In an interview Thursday in her court office, the 83-year-old justice and leader of the court's liberal wing said she presumes Democrat Hillary Clinton will be the next president. Asked what if Republican Donald Trump won instead, she said, "I don't want to think about that possibility, but if it should be, then everything is up for grabs." That includes the future of the high court itself, on which she is the oldest justice. Two justices, Anthony Kennedy and Stephen Breyer, are in their late 70s. "It's likely that the next president, whoever she will be, will have a few appointments to make," Ginsburg said, smiling.

Earlier this evening, I criticized the Chief Justices's long game. RBG's long game has proven myopic as well.

Advertisement

NEXT: 100 Supreme Court Justices Everyone Should Know

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Oh, for God’s sake, Josh. Quit whining about your perceived/imagined slights and manufactured insults. She didn’t want Trump to replace her, since it imperils a woman’s right to control her own body, and scores of other issues important to RGB.

    I wish she had not said it. On a scale of 1 to 100, I’d rank it at about a 03. It’s not gonna be a rallying cry for anything…except in your own fevered imagination. Those who want McConnell to behave consistently will continue to want that. Those who want to find a way to distinguish this from Garland will continue to do so. Those who want to respond by increasing the court will continue to advocate for that.

    It’s her death that will bring all this about. Not ridiculous pearl-clutching and panties-bunching by people like you.

    (By the way; Trump’s first reaction to news of her death was somber, respectful, and entirely appropriate. Good for him. Full stop.)

    1. Agreed. Josh’s decision to spam the VC with these masturbatory posts is not just poor form but a gesture of disrespect towards his co-conspirators. While they are trying to post eulogies of respect, Josh is pushing their posts down with his multiple attempts to paint Ginsburg as a hypocrite.

      If I were one of his law students, I would lose tremendous respect for him. I can’t imagine having to learn the law from this fart-huffing hack. It seems the fourth-tier cesspool that gave him a job saw fit to let him teach 1Ls, who will lack the experience or discernment to see Josh for what he is. It’s a shame, and why I will never hire one of the school’s grads at my law firm (not that we would ever recruit from that school in the first place).

      I agree that Trump, at least, has managed to keep his comments short and respectful. It’s a small solace ahead of the screaming terror that is sure to come.

      1. He’s been bringing down the quality of this blog for a while. A lot of posts are misleading and clearly partisan unlike the other, respectable authors of the blog. He rarely has the substantive legal analysis I come to this blog to read. And the shocking thing is I’ve never met a conlaw professor who is so partisan, but what else would you expect from the Scalia school of law. Go write for Breitbart instead, they’ll even pay good money to have a well credentialed person, rather than this volunteer job.

        1. Prof. Blackman is a fine, fitting Conspirator — the future of conservative legal academia — and does not deserve these attempts to marginalize him.

  2. If she didn’t want her seat to be potentially filled by a Republican President (and she has said off the record that many times) then she could have left when Obama was in the White House and the Dems had the Senate. But, she wanted to hold till the bitter end for whatever reason. And well sometimes when you gamble, you lose.

    The seat does not belong to Ginsburg or to any justice. In our system, the justices don’t get to pick their replacements. The seat belongs to the people and the appointment is the duty of the President. Ginsburg’s personal preferences have no relevance.

    I’m sure the confirmation process is going to be a grade A shit show which will make this whole election even more so of one. But lets not pretend that this odd, irrelevant dying wish (if she even said it) has any bearing on the situation.

    1. I actually agree with Jimmy for a very very very rare change. Ginsburg’s wish should be given precisely zero weight in this discussion. Trump should not nominate, and the senate should not confirm, anyone until after we know who won the election, but that’s because of the Garland precedent, not because of RBG’s wish.

  3. Ginsburg’s dying wish is just that, a wish, it is not the law. We should honor the law not her wish. Ginsburg had 8 years under Obama to retire, Ginsburg knew she had multiple health problems, yet she clung to power to the very end. I honor her service, to the country even if I disagree with her decisions, but question her judgement on staying on the court until her death.
    Let the Justice flame wars begin. The Republicans will try to ram through a nominee, the Democrats will do everything in their power to stop that nomination from becoming a confirmation!

    1. Democrats may surprise you.

      They might figure that leaving the Republicans be — other than seating a Democratic senator from Arizona during November — is the prudent course toward avoiding confirmation of a strident wingnut in the near term. Let Graham, Murkowski, Collins, Romney, and perhaps a few others grapple with this absent partisan pressures.

      And they probably are smart enough to recognize that enlarging the Court, rather than flailing against a Trump nominee, is the better practical course. Playing the matador — mostly just waving Republicans along as they put an unpopular, obsolete conservative bigot on the bench — could be the best way to arrange a Lawrence Welk introduction to the Court of 2021: ‘An’ a one . . . an’ a two . . . an’ a three . . . an’ a four.’

      1. I doubt your logic as Obama and Hillary had already declared the war quickly after Ginsburg’s death. I do agree if the Republican can seat a new judge and the Democrats can win, court packing will occur.

        1. Don’t forget statehood for Puerto Rico and the Douglas Commonwealth (maybe even Israel and Guam, too); universal health care; enlargement of the House of Representatives (and, correspondingly, the Electoral College, diminishing the amplification of backwater votes); policing reforms; an increased minimum wage; strengthened environmental protections; and whatever else makes sense.

    2. …..clung to power……

      Jewdicial dictatorship…….well said. She is gone, Prez fills the seat, stop the whining.

      1. “Jewdicial dictatorship”

        You can use any clinger terms you wish, Pavel, but I remind you not to use the terms “c@p succ@r” and “sl@ck-j@w,” which could get you banned at this blog — well, if you’re a liberal, at least.

  4. You would do yourself a favor, Josh, if you stopped posting about Ginsburg. It shows you as small-minded, hard-hearted, and lacking in judgment.

    1. While I was writing you made my point twice as cogently in maybe a tenth as many words.

    2. And he’s a big stinky poopy head too!

      /s

  5. You would do yourself a favor, Josh, if you stopped posting about Ginsburg. It shows you as small-minded, hard-hearted. And lacking judgment.

  6. Congratulations, Josh. In a few short hours you turned me around 180 degrees on something. Earlier this evening I said on Twitter that I thought conversation about an immediately recent death didn’t have to be all sackcloth, ashes and rending of garments to be respectful. A little diversion, so long as it isn’t disparaging or triumphal, could be OK, even therapeutic.

    Well mea culpa. One perfectly fine if obligatory eulogy followed by seven rapid fire vanity pieces, all musing and speculation, some of it denigrating to RBG, is incredibly tone deaf and disrespectful.

    You once mentioned that you’re empathy challenged, or words to that effect. Here’s some free advice: the next time somebody dies, you may want to remind yourself how that lack of empathy makes you look before you launch into an onanistic bender of naval gazing and self-congratulation.

    1. “You once mentioned that you’re empathy challenged.”

      I would wager that at least two Conspirators, and perhaps one or two others as well, reside on the spectrum. One might perceive that as a bit of a mitigating factor in the context of a lifetime of strident clinging.

      1. My tone and word choice was snarky, but the advice was sincere.

        1. My assessment is similarly sincere.

          I’d bet my car on Asperger syndrome (or other high-functioning autism). This site prevents multiple links, but the Autism Speaks site provides more information on attributes beyond lack of empathy (difficulty with social interactions and cues, restricted interests, desire for sameness, resistance to change, distinctive strengths, remarkable focus and persistence, attention to detail, difficulty with the give and take of conversation, restricted and repetitive behavioral patterns, disaffectedness).

          1. No, I took you seriously. That was my point.

  7. Ginsburg should have thought about this in 2014 when she should have retired. Instead her arrogant selfishness took over. She bought into the her own deification.

    Everything that happens now is entirely her fault.

    1. If a 7-6 liberal majority on the Court is her fault, mainstream America will love her all the more.

  8. Most Justices time their retirements so that a like minded President is in office to replace them. Are you not aware of this?

    1. Ginsburg fully expected Hillary to win.

      It’s Trumps fault, she could not retire with dignity.

      1. That’s my point.

        The last justice who did not time his retirement accordingly was Douglas, and he didn’t exactly go willingly.

        1. Concur – I meant to point out that Ginsburg fully expected to retire during the HRC administration.

        2. Brennan and Marshall didn’t time their retirements accordingly.

          1. Noted.

            They had both been waiting a long time for a Democrat and couldn’t wait any longer. Both thought their health had declined to the point where they could no longer effectively serve.

  9. Encino motors dissent – the law says A, but B is my preferred policy, therefore, B is correct

    ACA concurring opinion – Preferred policy is that we need health care reform , therefore compelled commerce is constitutional

    Bamm (signed onto sotomayer’s dissent) – a state constitutional amendment that requires compliance with the 14th amendment is unconstitutional.

  10. Josh is right. She was a partisan hack who masqueraded as a jurist.

    1. First in her class at Columbia Law. And you?

      1. She succeeded magnificently, overcoming the stale and petty bigotries — she was a woman, she was Jewish, she had a child — that she strove (successfully) to diminish.

        Her brilliance caused American society to be less likely to treat blacks and gays like dirt, too. That’s what conservatives can’t stand.

        1. Keep calling conservatives “racist” and “misogynistic”, “Reverend.” Not only will those words lose their meaning and effect, you’ll hand Trump victory and a Republican majority in both houses.

          I was promised death camps four years ago. Maybe it will happen this time around.

      2. Toward the top of my class at Chicago. We all know that law school grades are subjective and mean very little. Were they even anonymous back then? Who knows? Regardless, she continually substituted her policy preferences for the Constitution, and for the will of the people. She was not a hero. She was a traitor.

        1. Ahhh, the out and proud garbage vote weighs in.

          Does it strike you as the least bit odd that normal human beings respect a decent interval before disparaging the dead? Or are you under the delusion you’re the only person here with a critical opinion of the late Justice Ginsburg?

          Oh, I almost forgot that with you there’s a third option: you know it’s wrong, but you just can’t help yourself when you a chance like this comes along to crap on the grave of a liberal Jew.

        2. aktenberg – concur
          Bamm, signing on sotomayer dissent Michigan version of 14A was unconstitutional
          Goodyear/ledbetter – very simple statute of limitations case –
          Encino Motors – very good example of ginsburg showing policy preference contrary to statute
          ACA – compelled commerce is constitutional because ? because she liked movement to nationalized health care.

          numerous other cases where policy preferences over rides the constitution or the statutue.

  11. Josh’s posts lower the overall quality of the blog. They are the garbage I must sift through to get to the posts of the conspirators I actually care about reading, which is to say everyonce except Josh. He makes Stewart Baker look downright civil and apolitical by comparison.

    These are just so far out of character with the volokh conspiracy, I truly don’t understand how Josh got started here. Shoot, I remember the Juan Non-Volokh day’s of Adler.

    If anyone has a browser extension to filter out Josh posts, I’d be very grateful.

    1. “These are just so far out of character with the volokh conspiracy, I truly don’t understand how Josh got started here.”

      Wrong. Prof. Blackman was chosen and mentored by the Conspirators because he is the perfect reflection of this white, male, stale, right-wing blog.

  12. Those words mean, we should rush to do the opposite.

  13. Why no mention of the obvious? Her “last words” are constructed from wholecloth.

  14. Good thing there are mandatory retirement ages for airline pilots!! Now the nation goes in tailspin because the old nag hung on while she knew she was dying….what a dictatorial farce!! She is an insult to the Republic. The court will go for months, under staffed, just because Ruthy was a jerk. Put another Catholic on the court and watch the left go nuts.

    1. just because Ruthy was a jerk
      You’re the last person I’d expect to have problem spelling “Jew.”

      1. (The html screwed me, but I hope it’s clear that the phrase on top is the quote from Pavel, the sentence below, with link, is mine.)

  15. “If President Trump wins re-election, then a “new president” will not be “installed” until 2024.”

    Check your math, Josh. I believe 45 squared = 2025.

  16. Perhaps former Justice Ginsburg was just respecting the odds, as bright people tend to do. 538 indicates Trump’s dwindling prospects stand at 22 percent today and that the most likely Electoral College result is 410 or 420 votes for former Vice Pres. Biden.

    The race does not always go to the swiftest, nor the contest to the strongest, nor the debate to the better argument . . . but that is how smart people tend to bet. And former Justice Ginsburg was exceptionally smart.

  17. I was expecting some distasteful ghoulish delight from the political right on RBG’s passing.

    I am disappointed, but not surprised by Josh Blackman’s ability to find an even more vile way to react.

    Twisting a dead woman’s last words?!? Seriously man, step back and take a moment to re-evaluate your life. You’re still young, you have countless options ahead of you. Is this kind of crap really how you want to make your mark on the world?

      1. Her WISH was that she be replaced by the new President.

        Obviously, if Trump wins, there is no new President!

        The fact is that Blackman is pushing for a hypocritical and undemocratic policy.

        And rather than admit his complete lack of integrity he’s slandering a dead woman by twisting her words (knowing she’ll never be able to correct them). Now he gets to pretend to be all offended while advocating for an unethical act.

  18. I find the assertion that a President facing an election should not fill a SCOTUS seat to be specious. For their 4-year term they are President according to the voters in the past election.

    1. I find the assertion that a President facing an election should not fill a SCOTUS seat to be specious.

      Me too — but Justice Garland makes a persuasive argument to the contrary.

      1. Garland was nominated, and I believe in an election year. The Senate did not confirm him. They are not required to confirm a nominee.

  19. Her wish won’t come true.

    /sad trombone.

    Dems life. Elections have consequences. Yada, yada…yada.

Please to post comments