RBG's Daughter: Justice Ginsburg did not "anticipate" that Republicans would block Garland

Jane Ginsburg talks to Emily Bazelon

|The Volokh Conspiracy |

Emily Bazelon published a profile in the New York Times Magazine about Justice Ginsburg. There were only a few new tidbits–specifically, Bazelon talked to Justice Ginsburg's daughter, Jane.

First, we learn that RBG did not "anticipate" that the Republicans would block Judge Garland's nomination.

Instead, Republicans blocked Garland, a move Ginsburg did not anticipate, according to her daughter, Jane C. Ginsburg, who is a law professor at Columbia.

I don't know what to make of this statement. McConnell and Grassley announced they would block Garland's nomination almost immediately. At what point did RBG think that the Republicans would not block Garland? Maybe RBG thought that the efforts to block Garland would fail? But the word "anticipate" doesn't make sense here.

Second, Jane Ginsburg confirms what RBG hinted at: that she wanted Hillary Clinton to replace her:

Then Trump defeated Hillary Clinton to win the 2016 presidential election, upending the gamble Ginsburg had taken. "I think that Mother, like many others, expected that Hillary Clinton would win the nomination and the presidency, and she wanted the first female president to name her successor," Jane Ginsburg emailed me on Sunday. When I asked if Justice Ginsburg reflected differently on her decision to stay after her cancer came back, Jane answered, "Not to my knowledge."

Ginsburg made similar comments in July 2016 to the AP:

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.

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  1. Faintly interesting as gossip dimly highlighting the hypocrisy of all politicians, but otherwise as wasteful of electrons as this comment.

    1. Is there an electron shortage?

      1. Only in California

    2. Not wasteful since the political hypocrisy exposed is that of Ginsburg.

  2. Assuming the remark was not simply invented by the journalist, it could simply mean that she did not anticipate that the Republican majority would, in the event of any vacancy, fail to defer to the President’s choice.

    Which would have been understandable but a bit naive. After all no SCOTUS nominee has been voted down since Bork. But she ought to have spotted the Senate Democratic leadership trying to filibuster Alito, and only 5 Rs supporting the admirably qualified Kagan.

    But I am more inclined to believe that this is retrospective journalistic scene painting, rather than evidence of RBG’s naivete.

    1. It was entirely anticipatable. Bork’s situation was the one most like Garland’s. You had an election year appointment, with the President from one party, and the Senate held by the other party. Of course the Senate was going to at least potentially put a hold on it.

      Now the common criticism is that there should’ve been hearings at least. But the Democrats started denying hearings to circuit court judges back in 2001 as a tactic. So it was entirely anticipatable.

      When the Democrats lost the Senate, they then started filibustering judges. Which worked for a while. Until the Democrats took the Presidency and Senate, and then had the tables turned on them and the GOP returned the favor by filibustering judges. So the Democrats nuked the filibuster (“Except for SCOTUS judges”…which was pretty transparent)

      Democrats got a lot of judges through then. But then they lost the Senate. And then a SCOTUS seat came up (Scalia’s) and Democrats jumped with glee at the promise of changing the constitution of the court. But just like in 2001, the GOP said… “nah, no hearings right now”.

      The Democrats lost the election, and Trump nominated Gorsuch instead. Democrats then did the first filibuster of a SCOTUS nominee in recent history (A poor move), and that was quickly removed as would easily be expected.

      There were many shortsighted moves here by the Democrats. Perhaps the worst was “wasting” the SCOTUS filibuster on Gorsuch. It would’ve been far more useful now (and would’ve been tough to overcome). Removing the filibuster in the first place. Using the filibuster on judges in the first place.

      But now the Democrats seem to be planning more shortsighted moves. Packing the Courts. Packing the senate (by forcing in DC and PR). And they never seem to think about the backlash.

      1. Invoking the dreaded ‘backlash by the dwindling minority?’

        The combination of bluster and delusion is something to behold.

        But nothing to respect.

        Carry on, clingers. But only so far as your betters permit.

        1. Blablablablablabla

        2. Kirkland, people who mock the disabled are not “betters.”

      2. The Democrats lost the election, and Trump nominated Gorsuch instead. Democrats then did the first filibuster of a SCOTUS nominee in recent history

        No, the first successful recent filibuster. The Senate Democrat leadership was happy to filibuster Alito in 2006 – they just didn’t have enough votes to succeed. By 2020 they were breaking no new ground in trying to filibuster Gorsuch.

        1. Sorry s/b 2016

        2. “The Senate Democrat leadership was happy to filibuster Alito in 2006 – they just didn’t have enough votes to succeed.”

          Yes, thanks to the leadership of Senate Minority Whip Dick Durbin and the bipartisan Gang of 14. Anytime the majority party does not have the votes for cloture, a filibuster can only not have “enough votes to succeed” if the minority party sets strict party discipline aside. That’s how bipartisan norms are enforced.

      3. I agree that it was anticipatable, but for rather simpler reasons. No new SCOTUS Justice has been confirmed where the Senate is controlled by the opposite party to the President since 1991. Even then it was a tight squeeze 52-48, and the Senators who put Thomas over the top were mostly the now extinct species of Bluedogs.

        We should not be expecting R Senates to confirm D nominees, nor D Senates to confirm R nominees any time soon.

        1. “We should not be expecting R Senates to confirm D nominees, nor D Senates to confirm R nominees any time soon.”

          Of course we should. It’s rare for a Senate controlled by the opposing party to get the opportunity to nominate a Justice, because Justices don’t typically retire in those circumstances. But when it does happen due to an untimely death, we should expect the Senate to vote. If David Souter (nominated by George HW Bush and put on the bench by a 90-9 vote from a Democrat-controlled Senate) had died in 1993, Bill Clinton would have had to nominate a moderate Justice the would gain the approval of at least some Republicans.

          We don’t have to wait for an election to end a tie-break. Presidents have to put up nominees that the Senate majority can stomach. But the Senate majority shouldn’t withhold a vote on qualified, moderate justices, just because they aren’t the justice that the Senate majority would pick.

          1. This was all caused by the nuking of the filibuster. The Garland gambit wouldn’t have been feasible if there was a credible threat of filibuster in the case where a Republican were elected.

            1. I agree that the “Garland gambit” (by Republicans) would not have been possible without the nuking of the filibuster (by Republicans). I think we all understand that the reason Republicans nuked the SCOTUS filibuster was to prevent Democrats from filibustering Gorsuch.

      4. Democrats made another big mistake with the Kavanaugh hearing—the only thing they accomplished was pissing off W Bush by slandering his lackey Kavanaugh when Bush was on their side thanks to Trump winning the nomination and presidency. So Democrats were never going to vote for Kavanaugh…so why get involved in slandering him?? Kavanaugh was probably the best candidate from a Democrat perspective because he worked for Bush and Kennedy and not Scalia.

      5. Bork’s situation was the one most like Garland’s. You had an election year appointment,

        No, you didn’t. You’re really not good at the fact thing, are you?

    2. More like she didn’t think that the Republicans would have the courage to do anything.

  3. You didn’t anticipate it either. Be honest.

  4. “At this point, what does it matter?”

  5. “RBG’s Daughter: Justice Ginsburg did not “anticipate” that Republicans would block Garland”

    I guess in at least this case Justice Ginsburg was not as astute as she was credited to be by others!

    1. A modern astuteness test, then:

      How many justices will compose the Supreme Court of the United States at commencement of the October 2021 term?

      How many states will compose the United States on January 1, 2024?

      How many members will compose the United States House of Representatives on January 31, 2025?

      1. How much wood, would a woodchuck chuck, if Artie would stuff his moronic screeds where the sun don’t shine?

        Cling-on moron.

        1. RK”s comments are not without precedent. But the precedent should make him worry:

          The phrase “ash heap of history” literarily speaking refers to ghost towns or artifacts that have lost their relevance

          A notable usage was that of the Russian Bolshevik Leon Trotsky referring to the Mensheviks: “Go where you belong from now on – into the dustbin of history!” as the Menshevik faction walked out of the All-Russian Congress of Soviets on 25 October 1917 in Petrograd. In a speech to the British House of Commons (8 June 1982), U.S. President Ronald Reagan later responded that “freedom and democracy will leave Marxism and Leninism on the ash heap of history”.

          Notably, Trotsky died in exile in Mexico, assasinated by the NKVD, and reviled as a fool. Reagan died in his home, among the most honored of modern presidents, secure in the knowledge that he had been instrumental in bringing down Communism.

          1. And Castro didn’t even have a working JeeP to haul his body to the cemetery — it broke down and had to be pushed…

  6. Did many people anticipate that Senate Republicans would do what they did in that situation?

    I didn’t. It didn’t even occur to me that it was a possibility that they would do what they did until they said it was what they were going to do. It was, to me, so unconscionable and such a departure from both historic norms and the intent of the Constitution that the possibility of it wasn’t on my radar.

    Even after they threatened to do what they did I thought it might be a bluff. I doubted that they’d follow through on it, especially after President Obama nominated Judge Garland. I saw that as him, to some extent, calling their bluff.

    I say all that as someone who was pretty disturbed by the thought that President Obama was going to get to replace Justice Scalia. When I first heard that he had died, my throughts immediately went to some decisions – e.g., Heller and Citizens United – which were in jeopardy. I think Justice Gorsuch is quite preferable to a Justice Garland. But how Justice Gorsuch got on the Court still bothers me.

    I’d also say this. I think the way we typically describe what happened helps to hide the heinousness of what Senate Republicans’ did. We talk about them blocking Judge Garland. But it wasn’t Judge Garland they blocked as much as President Obama. They didn’t say we aren’t going to let Judge Garland on the Court. They said, we aren’t going to let President Obama put anyone (else) on the Court. They, in effect, said that he wasn’t the legitimate president, or at least that he was no longer the legitimate president. Voters didn’t elect him for 4 (more) years, they only elected him for 3 years.

    1. Relax. The reckoning will solve all of this.

      1. Yep, there are a lot of Catholics who aren’t going to appreciate the Dems trashing their religion.

    2. Exactly right.

    3. Boohoo the Senate dared to exercise their Constitutional power not to rubberstamp SC justices. Get over it, as Armchair Lawyer pointed out the Dems started playing games long before any of these and have been doing just as much if not more than the Republicans to maximize their position over any precedents so spare me your faux righteous indignation that we’re not playing by some rules you hallucinated in your mind. Your side isn’t fooling anyone that they’re moral superiors.

    4. That’s one view of what voters did.

      A different view is that voters looked at Obama, and Obama’s choices and decided to counter him when and where they could, by voting a GOP House and Senate into power. The Senate looked at that, looked at the choices made, and decided not to consent to Obama’s choice of Garland. Which is entirely within their authority.

      In fact, the Senate has, several times in the past, declined to consent to the President’s choice for SCOTUS nominees.

      A criticism is that hearings weren’t held. But, often hearings weren’t held for Circuit Court nominees under a Democratic Senate and a GOP president. So, no, hearings didn’t NEED to be held.

      What could Obama have done differently? He could’ve withdrawn Garland’s nomination, talked with Senate Republicans, and asked who he could appoint who would be acceptable. Obama didn’t do that however. He bet that Hillary would win the election instead.

      1. He already knew Garland was acceptable. The Republican chairman of the Judicial Committee had said so, mentioning Garland by name.

        1. Don’t bring up inconvenient facts.

          There was no objection to Garland specifically. He had been highly praised by Republicans.

          It was a slap at Obama.

          1. And the Democrats wholesale refusal to hold hearings during Bush II was … a slap at Bush II.

            Let’s not beat around the bush here.

            1. “wholesale”? If you’re talking about the 107th and the 110ths Congresses, President Bush had plenty of nominees confirmed during those terms.

          2. bernard11…you’re right about that. It was a slap at POTUS Obama. No two ways about it. He was qualified in the sense that he could have done the job.

        2. Olympia Snowe was the most “Bi-Partisan Senator — even more than Collins.

          Care to guess how many times Obama conversed with her?

          That would be NONE — she was asked as she was leaving the USS.

          1. “That would be NONE — she was asked as she was leaving the USS.”

            That’s strange, because in 2009 Senator Snowe said she spoke with President Obama “while he was aboard Air Force One en route to Asia earlier this week.”

            I’m going to throw this out there. Is it possible that maybe you’ve misremembered what you heard? That in fact Senator Snowe said, in 2012, that she had not spoken to the President for several years (instead of having conversed with him “NONE”?).

    5. IMO the action was almost perfectly predictable (a rising Donald Trump is the only thing that might throw a wrench into the prediction). The trendline was toward opposition Senate declining to act on presidential nominations for ideological reasons for a long time. That it hadn’t happened at SCOTUS yet, was just the happenstance of party alignment precluding it. And Democratic strategists were, quite unsurprisingly, on the same page.

      If this action truly shocked you, I think you haven’t internalized how important Supreme Court seats were to the parties in 2016 (and are, possibly to even greater degree, now).

    6. I really don’t get the complaint about Garland. The President nominates. That’s all he gets to do. The Senate has to consent. If the President nominates someone that a majority of the Senate doesn’t want to see on the Court, the President’s nomination is rejected. That’s the way the system was designed. It worked the way it was designed for the Garland nomination.

  7. I suspect that Justice Ginsberg may well have believed that the country was fully on her side and the victory of her point of view was inevitable, and hence been very surprised to discover that things were not so simple.

    She was, in some respects, a polite version of our own Rev. Arthur Kirkland. It’s very plausible that she shared not just his zealous conviction, but also the naivete about the objective state of the country that such zeal often carries with it. She may well have also believed that her opponents were merely a handful of clingers who were so obviously wrong that their demise was inevitable. And she came to learn the consequences that such naive self-assurance can have, in a way that people who merely comment on blog posts do not.

    Her zealous self-asurance led her ro underestimate her opponents. And such naive underestimation has consequences, as we now see.

    1. It does seem to be a continual issue. The zealous assumption that one’s views are the true, right views, and other views should be discounted, ignored and made “unacceptable” through various means.

      1. Amos…uh, have you checked a mirror lately?

        1. Hmmm … nope, I’d bet he still won’t see your face in his mirror.

          1. This is an interestingly unthoughtful accusation.

            If I thought “other views should be discounted, ignored and made “unacceptable” through various means” I would never have come to this blog.

            But then there are the increasing number of the commenters who want to kill liberals…

    2. Excellent point, and well reasoned. Thanks.

    3. “Her zealous self-asurance led her to underestimate her opponents.”

      That’s what the Left does — the Right instead makes the mistakes of McClellan.

  8. Another piece of nonsense from Blackman.

    1. And your comment is well-reasoned and full of enlightening content.

      1. No. It’s just a random comment expressing my opinion of the post.

        It does have the virtue of being brief and to the point.

  9. The daughter seems to put a lot of words in her mother’s mouth, that are unsubstantiated.

    If true though – RBG really wanted a woman who failed her first bar exam, then falsified her billing records at an Arkansas law firm?

    1. Suggesting RBG’s daughter fabricated her dying words just because you don’t much like them is a helluva move.

      1. I doubt she fabricated them. But they do not speak well of Ginsburg.

        The bottom line is that I really don’t care what Ginsburg “wished” or “anticipated” would happen to her seat. Her seat is not her private heirloom. It is an office of the United States, a creature of the Constitution and Congress. She served admirably for over 25 years. Now her office goes back to the People and their representatives to decide who fills that seat next. “That seat” not “Her seat.”

        1. It’s not remarkable that she wouldn’t want Trump to appoint her successor.
          Saying that it’s some moral failing to voice that is pretty ridiculous.

          1. Many politicians and commentators think it’s remarkable, and that we have some moral obligaiton to follow it.

            As for RBG, she made several inappropriate political statements, that a sitting justice should not make. As I said, what she wanted means nothing.

            And that her deathbed wish was who would be appointed as her successor does not speak well of her. Most people have other things on their mind at that time.

            1. And that her deathbed wish was who would be appointed as her successor does not speak well of her.

              It wasn’t a “deathbed wish.”

              She made the statement a few days before she died.

              And who are you to judge what people should or should not be thinking about as they approach death?

              1. “She made the statement a few days before she died.”

                Huh. Sarcastro says that they were her dying words. Sounds like he is the one fabricating her dying words. Ironic!

                1. I’m pretty sure that you and I both knew what was meant there. Did you think I thought her last breath whispered it out?

                  1. I’m pretty sure that you and I both knew what was meant there.

                    I know what…

                    “her dying words”

                    …means. Either you do not, or this is just another entry in a near-infinitely long list of you lying about what you or someone else has said/meant.

                  2. “I’m pretty sure that you and I both knew what was meant there.”

                    Well, I think you meant to say, “Suggesting RBG’s daughter fabricated her words just because you don’t much like them is a helluva move.”

                    But you wanted your statement to have more impact, so you chose to say, “dying words” even though the statement was made a few days before she died.

                    Am I close?

                    1. I view them as her dying words. As does everyone else.

                    2. I view them as her dying words.

                      And Rachel Dolezal views herself as black.

                      As does everyone else.

                      Wrong. Everyone else believes what *I* believe!!!

                      Do you even read what you’ve written before hitting “Submit”?

                    3. “I view them as her dying words. As does everyone else.”

                      Except for bernard11 two comments up, I suppose. Unless there’s some distinction between “deathbed wish” and “dying words.”

                    4. Unless there’s some distinction between “deathbed wish” and “dying words.”

                      Prepare yourself for the, “We’re all at one stage or another of “dying”, aren’t we?” song-and-dance.

        2. Same thing with the “Kennedy” Senate seat, held by JFK until he was elected POTUS, and then a placeholder until Teddy turned 30 and could have it himself. And hence it wasn’t “supposed to” go to Scott Brown.

        3. “The bottom line is that I really don’t care what Ginsburg ‘wished’ or ‘anticipated’ would happen to her seat. Her seat is not her private heirloom.”
          Absolutely right.

      2. You guys really aren’t big on healthy skepticism, are you?

        1. That’s not what this is, TiP, don’t pretend this is anything else than an ugly accusation based on nothing.

          1. “That’s not what this is, TiP, don’t pretend this is anything else than an ugly accusation based on nothing.”

            The suspicion that the circumstanced surrounding her death might be spun to partisan advantage by partisans is “an ugly accusation based on nothing?” I’d say it’s a pretty safe bet.

            You, yourself, have done this in this very thread, spinning a statement that she made a few days before her death into, “her dying words.”

            1. *eyeroll*

              You used to not be like this.

              This is insulting classless nonsense in service of basically nothing except Trump said it.

              1. No, this is more evidence that leftist belief is based on dogma instead of evidence.

                First, it’s “we have to believe accusations made by women.” Which is really, “we have to believe accusations made by women unless they’re against male Democrats.”

                Now it’s another Democratic talking point we should regardless of the weight of the evidence.

              2. “This is insulting classless nonsense in service of basically nothing except Trump said it.”

                It’s all classless. The Dems shouldn’t be using it to political advantage, and Trump shouldn’t be questioning it. But as a factual matter, it is hardly beyond dispute.

        2. We’re fine on healthy skepticism, not so good on sick skepticism, which is what’s on display here.

          The contortions you RWNJ’s, including Blackman, are going through to make this seem like a big deal are amazing.

          The worst case here is that she misjudged McConnell. How big a mistake that was ex ante depends on when she made the statement, and its context.

          In any case, so what? The whole post is just another stupid sneer at Ginsburg.

          Keep at it, Josh. There’s money to be made as a right-wing hack.

          1. Then a lifelong lawyer, like Ginsberg, should have had dictated a “dying wish” letter like Ted Kennedy, who said his last wish was that the Senate pass Obamacare, which is did. Now, did Kennedy’s letter help, maybe or maybe not, but it certainly got a sh*t ton of airplay.

            1. And got Scott Brown elected, which would have killed it if the Dems had followed the rules.

              1. No, Kennedy’s letter didn’t get Brown elected. Martha Coakley’s overconfidence did. MA voters weren’t in a big rush to stop Obamacare, despite your storytelling.

                Oh, and the Democrats did follow the rules.

                1. Don’t forget, Brown was elected *before* the Dems stripped out a shell bill in order to have a law that will raise revenue “come from the House.” Did it follow the rules, yea, sorta, if you don’t look closely. Brown was there to STOP Obamacare, but he never got the chance.

                  In an alternate universe where Obamacare wasn’t on the table, do you really think that MA of all places wouldn’t have swung to the GOP for a single election cycle? That not being intellectually honest with yourself.

                  Anyway, it’s as much of a fact as possible that Obamacare led to a congressional loss for the Dems in 2010. The political scientists have shown that, by a statistically significant analysis, that Dems who voted for Obamacare in swing districts were not re-elected.

                  1. In an alternate universe where Obamacare wasn’t on the table, do you really think that MA of all places wouldn’t have swung to the GOP for a single election cycle?

                    Are you under the impression that Brown won in MA on a campaign to stop Obamacare?

                    I don’t think so, and I do live in MA, and did at the time. Look, as I’m sure even Dr. Ed will agree, his opponent ran a lazy, entitled, race while Brown campaigned vigorously, and not on an anti-Obamacare platform. Sometimes when that happens the early underdog wins.

                2. You mean the rules they changed on December 24th? And then proceeded to pass the bill under the new rules that evening? Those rules? But yeah, they did follow the rules.

                  Looks like Team R read the playbook.

            2. That’s totally ridiculous, m_k.

              Why should she have dictated a letter? Her statement of her preferences was simply that. It had no legal force whether in writing, made in front of 100 witnesses, or whatever.

              Was she supposed to imagine that, if he daughter repeated it, that RW assholes would accuse her daughter of lying? Was she supposed to care if they did?

              WTF is wrong with you people?

              1. I’m not saying that the daughter is lying, just that if RBG wanted to be 100% clear and such, she could have dictated a letter like Kennedy did, indicating her dying wish. She certainly gave plenty of interviews over the years, and didn’t hesitate to indicate her disdain for Trump.

                However, what remains of her and the Court’s decorum and/or conscience likely kept her from doing so. Or, for all we know, such a letter would make a wonderful October surprise.

                1. Listen to yourself.

                  1. I am. What in my last comment shocked you so much?

                    1. That people should get their dying wishes written down.

                      Why not notarized as well? I don’t think you are capturing the situation very well.

                    2. Yes, people have their notarized dying wishes written down all the time. It’s called a will. Aren’t you a lawyer? Ted Kennedy certainly did write down his dying wish. For heaven’s sake Schumer had a press conference with a RBG pic on it with her last public words on it that she not be replaced until a new president is installed.

                      Personally, I think RBG was most likely thinking of friends and family and where she would be going next (if anywhere) as she lay dying. It would be pretty pathetic if she was thinking about politics as she breathed her last.

              2. It was more than simply a statement made in private to her daughter. And AOC and other Dems have been using it as a political talking point to try to delay the nomination. So yes, people should be skeptical.

                1. Convenience to the other side is not enough reason to be skeptical.

                  1. Convenience to the other side is not enough reason to be skeptical.

                    Why not? You seem to think it’s reason enough for blind acceptance.

                    1. No, I think common decency is the reason.

                    2. “Common decency” is not a valid argument against skepticism. It’s a disingenuous excuse for urging blind acceptance.

                    3. “No, I think common decency is the reason.”

                      This is something you see more and more coming from the left.

                      We should believe X because it’s decent to believe X. Never mind if there’s evidence to support X.

                      It’s most prominent in the “believe women” standard that evaporates when Bill Clinton or Joe Biden are accused of misconduct, but it manifests itself elsewhere too.

                    4. OK, TIP, and wuz.

                      You think her daughter is lying – just made the whole thing up?

                      Why?

                      What do you think Ginsburg’s thoughts on her replacement were? Do you think she was hoping Trump would name her replacement?

                      Your baseless suggestion that this is all a fabrication is sleazy BS.

                    5. You think her daughter is lying

                      Neither I nor TIP said any such thing. Are you really so dense that you don’t understand the difference between…

                      “She’s lying.”

                      …and…

                      “I choose to not blindly accept what she claimed as thought it were substantiated truth, especially when it is being used as a political argument.”

                      …?

                    6. “as though”

                    7. “You think her daughter is lying – just made the whole thing up?”

                      As I said, I have no idea. Why do you think she didn’t? People make up anecdotes that serve a partisan agenda all the time, and an uncorroborated claim that advances one’s political agenda should be given little weight.

                      And it’s unfortunate that this is being used as a talking point by either side, but either Ginsburg or daughter injected it into the public sphere, so here we are.

      3. And similarly, you believe RBG’s daughter didn’t fabricate her dying words just because you like them.

        It’s not unlike one surviving sibling saying to another, after mom died without a will, “mom said I get everything.”

        1. Actually, no. I’m not viewpoint-specific in believing people’s family reporting their dying words.

          Telling you can’t seem to understand not being a petty little person.

          1. People lie.

            1. That’s no way to go through life.

              1. Yea, actually it is. And you’re the better for it.

                1. I’ve done quite well in life taking people at their word until rebutted.

                  Seems pretty miserable to me worrying that anyone you interact with could be deceiving you.

                  1. Trust, but verify. Someone famous said those words, and it works out well for all people if you do.

                    When did you develop telepathy? Seems miserable to you perhaps. My mental state, good or ill, sad or happy, unless I tell you, is an unknown. If you must know, I’m doing pretty good though.

                  2. “I’ve done quite well in life taking people at their word until rebutted.”

                    OK, but just FYI, some of your male friends have less sex than they say they do. And some of your female friends have more.

            2. People lie.

              Given Sarcstr0’s long and unbroken record of pathological dishonesty…

          2. We should believe people’s family reporting their dying words because not to do so would be petty? That’s not much of an argument.

            1. There is no countervailing evidence, and there won’t be. You’re just being a dick.

              1. You’re just being a dick.

                And you’re a pathologically lying sack of shit who defends a film sexualizing little girls because you “read the synopsis” and just know that it doesn’t. Do you win?

              2. “There is no countervailing evidence, and there won’t be.”

                It’s an uncorroborated claim that furthers a partisan agenda. It could be true, but it could also be fudged. People lie to advance partisan causes all the time.

                1. Ar ewe talking about her statement that she wanted the next President to nominate her replacement, or that she didn’t anticipate the mistreatment of Garland?

                  If the first, here is Nina Totenberg, who reported the matter, on Meet the Press:

                  You know, in the last days, when she knew she was, the end was near, she dictated this statement to her granddaughter. And there were other non-familial witnesses in the room, so this isn’t just a granddaughter’s view, but the, her granddaughter, Clara, took it down and it said, “My most fervent wish is that I not be replaced until after the election and the installation of a new president,” meaning whoever that is from the election.

                  I know you guys love to channel Tucker Carlson and Trump, who both outright called this a lie. So stop the BS. Stop the “juat asking questions” crap. You’re claiming Totenberg is lying, or the granddaughter is. That’s a pretty despicable claim.

                  1. You’re claiming Totenberg is lying, or the granddaughter is. That’s a pretty despicable claim.

                    Is that why you implied the same about both with regard to RBG’s not retiring during Obama’s 2nd term because she wanted her replacement to be selected by Clinton?

    2. Maybe she should have paid someone to take the exam for her.

      That, you wouldn’t have any problem with, I guess.

  10. Just a thought on this issue. Trump was elected by recalcitrant conservatives and ordinary Republicans (myself included) voting for him on his promise of filling Supreme Court seats with Orginalists when the rest of his candidacy seemed only marginally better than Hillary Clinton. By that logic, election year or not, Trump has a mandate from his voters to fill the seat more than any previous president.

    (awaiting incoming fire)

  11. I’ve just had a brilliant idea of how to soothe political tensions, to pour oil on troubled waters, to de-escalate the judicial wars. It’s absolutely brilliant. No really.

    I see some mischievous critturs at the heart of all the trouble. Norms. They float like will-o-the-wisps, just out of plain sight, and they flee when you run to get a closer look.

    Here’s the idea. Are you ready ?

    MAYBE SOMEONE SHOULD WRITE THEM DOWN.

    It’s a killer. Let’s get Mitch and Chuck to write down their idea of what the norms are. On all judicial stuff. Hearings – whether and how quick. Filibusters and supermajorities – yes or no, or variable according to length vacancy has been unfilled. Time limits before getting to a floor vote. Whether and when it’s OK to sneak past Senate Rules by overruling the Chair on a simple majority, whether and when it’s OK to expand the number of seats on SCOTUS (or on other courts.) All that kinda stuff.

    Then we could see whether there’s some kind of correspondence between Republican norms and Democrat norms.

    I told you it was brilliant.

    1. Norms usually develop bottom up, not top down though.

      1. Even if so, that does not prevent the relevant leader from writing down what norms he believes have developed.

        That after all is the theoretical process for discerning the common law – not for the judge to invent it ex crania, but for the judge to identify the custom that has previously formed.

    2. Turns out, you can’t write everything down.

      Anthropologists have found that unwritten rules are a pretty universal phenomenon.

      1. Also turns out, you can write quite a lot down, once you’ve invented writing.

        And one of the reasons why lawyers are in business is that folk have found that writing down their agreements is a more reliable record of what was agreed, than not writing them down. There’s obviously a cost and we don’t go for written contracts when ordering a beer.

        But the Senate ought to be up for it.

        1. You’ll never catch it all, and pretending that you can will just make your system brittle.

          Lawyers do their best to capture specific situations within a specific relationship, and even then stuff has to go to court all the time.

          1. How robust would you say the current let’s-not-write-down-any-norms-and-rely-on-the-other-team’s-sense-of-honor approach is ?

            1. It worked quite well for hundreds of years.

              Writing down norms won’t solve the problem we’re dealing with here.

              1. But following the written rules will, Sarcastr0. There are only two.

                1. That’s way underdetermined though – we didn’t get through the last 200+ years just following the rules written down either.

                  Personal honor was a big deal for at least the first hundred years of our country’s life. Like it or no, that was all about unwritten norms.

                  1. Personal honor

                    You talking about personal honor is like Bernie Madoff talking about financial ethics.

  12. Or one could put it this way:

    Ginsburg held on to the reigns of power too long because nothing else would feed her need for it. Instead of retiring at an appropriate age, she would keep her seat for another six years of failing health ultimately putting her chance of having an ideological successor be appointed to fill the seat at risk. That gamble did not play out as she passed in the waning days of Trump’s first term. Sometimes when you spin the wheel of destiny at the casino of life, you lose.

    1. Name any other productive position where you can be well passed the age of retirement, suffering from a terminal illness, not fulfilling your duties for months, and not be told it is time to leave and let someone capable take over?

      It is abject proof that SCOTUS is simply too unaccountable for a government of the people, by the people, and for the people.

      1. U.S. Senate.

        1. Yea, Strom Thurmand and Ted Kennedy ring a bell.

          You may as well include the presidency, if we throw in post-stroke Woodrow Wilson.

          1. Professor.

            1. You don’t even have to have a terminal illness to be useless as a professor…just be teaching [fill-in-the-blank]-studies.

      2. “Name any other productive position where you can be well passed the age of retirement, suffering from a terminal illness, not fulfilling your duties for months, and not be told it is time to leave and let someone capable take over?”

        Sole proprietorship. I had a client whose idea of succession planning — into his 90s, with hundreds of employees — was to buy bigger vitamin pills each year. He rejected several good succession opportunities and told me his children would wreck the business within five years of his death. It took three.

        1. Sounds like Ginsburg’s plan.

  13. Wait, didn’t Roberts lecture us that these are not political seats?

    And didn’t all the usual suspects highlight his lecture?

    What does this article, and all the commentary surrounding it really tell us about the reality of these seats?

    1. What it tells us, is that the left has run to the courts for succor so much, and advanced their policy agendas through them so often and so frequently, that the Supreme Court *really matters*. It’s not a side show to the culture war, or elected politics.

      Further, the right has said “if you can’t beat ’em, join em” and is now doing the same thing in advancing their agenda through the courts rather than trying to “tame them.” Last president to try that was Reagan.

      1. “Further, the right has said ‘if you can’t beat ’em, join em’ and is now doing the same thing in advancing their agenda through the courts rather than trying to ‘tame them.’ Last president to try that was Reagan.”

        I don’t think that’s true. An originalist judge is not there to push through his agenda. That’s the point of being an originalist. If all judges were originalists–sticking to their lane, doing their best to decide matters according to the law, not according to their policy preferences–an appointment to the Supreme Court wouldn’t be that big a deal.

  14. If RGB truly didn’t want a Republican President to nominate her successor (something anti Trump NPR claimed without citing a source that dozens/hundreds of Dems and anti Trumpers in main stream media have repeated, just as they’ve done with anonymous claims by Atlantic that Trump insulted soldiers), and if RGB truly desired to preserve Roe v Wade and her legacy, she would have retired when Obama was President and the Dems controlled the Senate.

    Seems like RGB was very selfish, and just wanted to maintain her own power.

    1. Oops, my life long dyslexia prevailed once again, as I meant to write RBG instead of RGB.

    2. Seems like RGB was very selfish, and just wanted to maintain her own power.

      My own speculation (and that’s really all it is) is that it was less about holding on to power and more about her desire for the symbolism of being replaced by a female POTUS.

  15. The simplest explanation and the one most likely to be true is that she loved her job.

    1. Of course that’s what it is.

      But this isn’t about understanding, this is about grave-dancing.

      1. The simplest explanation and the one most likely to be true is that she loved her job.

        Of course that’s what it is.

        That’s a pretty bizarre assertion, given that her plan (according to her daughter…whom you’ve admonished us to believe without skepticism…Nina Totenberg, et al) was to just wait until after the 2016 election, retire and have her seat filled by Hillary Clinton. In fact she herself publicly hinted at this more than once. Her own words in a 2016 interview with AP:

        “It’s likely that the next president, whoever she will be, will have a few appointments to make”

        1. She had been putting off retirement again and again. Clearly she didn’t want to retire.

          1. She had been putting off retirement again and again. Clearly she didn’t want to retire.

            When did she put off retirement during a female POTUS administration? And are you calling her, her daughter and Nina Totenberg liars? You misogynist.

            1. Liberals lie…..all the damn time…..

      2. this is about grave-dancing.

        Correct.

        1. So you’re also calling her, her daughter and Nina Totenberg liars?

  16. Romney says he will vote to confirm. Liberals be flipping their shit in 3….2…..1……

    1. Be sure to remind them of the number of district and circuit court judges confirmed, first. Another article I judge confirmed today. Two more district court judges on Thursday.

      Their heads explode every time.

  17. In fairness, Justice Ginsburg’s inability to have foreseen the future, is probably no more blameworthy than the millions of Wall Street investors who, throughout our history, enthusiastically bought stock at the top of booms, fearful of losing out on the good times and growth, only to have to sell at firesale prices after the crash.

    Being unable to foresee the future, a tendency towards wishful thinking, and discounting or simply ignoring risks one regards as low probability, are all extremely common human traits, as common among conservatives as liberals. Highly sophisticated Wall Street investors have been ruined by very similar thinking.

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  19. Apparently Ginsburg was too much of an egghead.

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