White House aides are said to be preparing a shortlist of potential Supreme Court nominees in the event that Supreme Court Justice Ruth Bader Ginsburg dies or retires.
Ginsburg, 85, missed oral arguments this week for the first time since she was first appointed to the high court 25 years ago by President Bill Clinton. After missing arguments on Monday, Tuesday, and Wednesday (for the record, she is reading transcripts of the sessions while she recovers from cancer surgery), the Trump White House began “reaching out to political allies and conservative activist groups to prepare for an ailing Justice Ruth Bader Ginsburg’s possible death or departure from the Supreme Court — an event that would trigger the second bitter confirmation battle of President Donald Trump’s tenure,” according to Politico.
This would actually be the third bitter confirmation battle of Trump’s tenure, unless Politico thinks Senate Majority Leader Mitch McConnell (R-KY) going nuclear to get Neil Gorsuch confirmed doesn’t constitute a “bitter confirmation battle.”
Politico spoke to “a source familiar with those conversations” within the White House, who said the administration “is taking the temperature on possible short-list candidates, reaching out to key stakeholders, and just making sure that people are informed on the process.” This source emphasized that the White House is “doing it very quietly, of course, because the idea is not to be opportunistic, but just to be prepared so we aren’t caught flat-footed.”
Back in November 2017, the White House updated a list of potential Supreme Court nominees in the event that President Trump would need to replace another justice. The list contained 25 names, including Brett Kavanaugh, who would eventually be confirmed to the court after Justice Anthony Kennedy announced he would retire in 2018. Other names on the list have since been appointed elsewhere, such as Don Willett, who now sits on the Fifth Circuit Court of Appeals.
Still, some of the names on this list could come up again on a shortlist to replace Ginsburg, should the need arise. Amy Coney Barrett of the Seventh Circuit Court of Appeals was on the shortlist for the seat that eventually went to Kavanaugh. Since Ginsburg is a woman, replacing her with another woman could alleviate some of the attacks sure to be lodged against a potential future nominee.
Of course, Democrats and their media supporters will demand Trump replace Ginsburg with another liberal judge to keep the current makeup of the court’s ideology — a demand that was not put to President Barack Obama when he nominated Judge Merrick Garland (a center-left judge) to replace Justice Antonin Scalia (a reliably conservative judge). Garland never made it to the Supreme Court.
In the past, Ginsburg has said she would retire only when she “can’t do the job full steam,” however, previous justices have continued to work on the Supreme Court from home after their health deteriorated. Since it’s a lifetime appointment, Ginsburg is under no obligation to retire.
And we must remember she’s recovering from serious surgery. She may very well return to the bench soon. TMZ reported seeing her leaving her Washington, D.C. apartment on Wednesday, so she may be feeling better. Right now this is all just speculation, but Ginsburg has proved resilient in the past.