September 20th, 2021


The graveyard ghouls and a lather of speculation

Wesley Pruden

By Wesley Pruden

Published Jan. 11, 2019

The graveyard ghouls and a lather of speculation

Judge Amy Barrett.
Not all ghouls live in the graveyard. Some of them are busy in the capital sunshine, making book on Ruth Bader Ginsburg's chances of returning to the U.S. Supreme Court and staying there to assist in the rendering of Donald Trump and his administration as dead as one of those graveyard ghouls.

Justice Ginsburg missed oral arguments at the court this week for the first time in the 25 years she has been on the court, and that put the politicians, pundits and a considerable portion of the left into a lather of speculation, none of it idle. Everyone wants the latest measurements of her blood pressure, pulse rate, respiratory data and anything else useful to the debate.

No one, but the meanest partisan fanatics, wishes the lady ill. Donald Trump, who once tweeted that her "mind is shot" and demanded she resign, sent his best wishes for "a full and complete recovery" from cancer in her lungs, which is more than the president could expect from Democrats if he were in similar circumstances. He spoke for all presidents when he said last summer that "outside of war and peace, the most important decision you make is the selection of a Supreme Court justice, if you get it."

Mrs. Ginsburg, 85, has survived cancer scares before, including cancers of colon and pancreas, two of the deadliest malignancies. But she's older now, and all winning streaks ultimately come to a sad end.

Washington is girding for the mother of all Supreme Court confirmation battles, and if you thought the Kavanaugh confirmation was sordid, outrageous, low-down and dirty, you ain't seen nothin' yet. If Mrs. Ginsburg must leave the court, whether by retirement or the death that comes to us all, installing another constitutional conservative on the court would set in stone a constitutional majority for decades.

The White House, as any White House would, has begun reaching out to its allies to prepare for Mrs. Ginsburg's departure from the court. You can bet that Chuck Schumer, who orchestrated the assault on Brett Kavanaugh, is encouraging Dianne Feinstein to go to work finding another witness with a fantastical tale to tell about a Supreme Court nominee. Only this time find a confection Democratic politicians can sell.

"It would be a brutal confirmation," says John Malcolm of the Meese Center for Legal and Judicial Studies at the Heritage Foundation. "The first two were not easy at all, but this would be much harder. When Neil Gorsuch was the nominee, you were replacing a conservative [Antonin Scalia] with a conservative. With Brett Kavanaugh, you were replacing the perennial swing voter, [Anthony Kennedy] who more times than not sided with the so-called conservative wing, so that slightly solidified the conservative wing.

"But if you are replacing Justice Ginsburg with a Trump appointee, that would be akin to replacing Thurgood Marshall with Clarence Thomas. It would mark a large shift in the direction of the court."

Indeed, we might expect Chuck Schumer, the Democratic majority leader, to find someone like Christine Blasey Ford to obstruct, block, retard and hopelessly clog the system. Chuck could argue that it's just not fair for Republicans to get to fill all the vacancies that come up on the court. Life is unfair, and why shouldn't Democrats get an occasional break?

The White House, as it should, is working on a short list of potential justices. If President Trump stays to form, he will choose from the list of judges dedicated to defending the fully grown Constitution left by the Founders, and read the Constitution as it is rather than as some people wish it were. The names on the list will be familiar.

One of several distinguished judges on the U.S. courts of appeal is Amy Barrett of the Seventh Circuit Court of Appeals in Chicago, whom Mr. Trump wanted to appoint before he settled on Brett Kavanaugh. She is a devout Catholic, and it was her faith that Dianne Feinstein thought should disqualify her for the Supreme Court. She has views on abortion "unacceptable" to Democrats. She does not regard abortion as every woman's rite of passage. If she's Mr. Trump's choice we can expect the feminists to do more than the usual putting on their pussy hats and stamping their feet, preferably with defenseless men under those tootsies, and run off to the streets for another march.

But Mrs. Ginsburg has defied the ghouls before, and John Roberts, the chief justice, says she will work from home or hospital. Judges work mostly from texts. Like the Founding Fathers, judges are relics of the day of the printed word, for which we can all be grateful.

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JWR contributor Wesley Pruden is editor emeritus of The Washington Times. His column has appeared in JWR since March, 2000.