The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.