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Moreover, no one knows when their hour will come: As fish are caught in a cruel net, or birds are taken in a snare, so people are trapped by evil times that fall unexpectedly upon them.  — Ecclesiastes 9:12 (NIV)

For longer than I have been alive, the issue of US courts and judges has been a hot topic. In countless cases over at least six decades, the Left has used the court system and sympathetic, unelected judges to advance their political and cultural agenda in ways that elected legislatures never would, because the voters wouldn’t put up with it. In 2016 Candidate Trump, also concerned about this issue and sensing a winning platform plank, promised to only name Constitutional conservative judges if elected. (I discuss this matter further in an October 2016 blog post, “Black Robes Matter.”)  

Fast forward to now. As if a global pandemic, economic meltdown, massive unemployment, “mask wars,” urban riots, foreign threats, lockdowns, “war on first-responders,” and a national election had not made 2020 dramatic enough, gas was thrown on the fire one Friday night when the news struck on September 18 that US Supreme Court Justice Ruth Bader Gisburg had passed at age 87 after a long battle with pancreatic cancer. 

After expressing their condolences and acknowledging her decades of public service, President Trump and Republicans pledged to name a replacement right away, while Democrats cried foul and claimed that the seat should remain vacant until after the November elections. Just days later, President Trump named Judge Amy Coney Barrett as the new Associate Justice and, in keeping with the Constitution, sent her name to the Senate for approval.

Barrett, the mother of 5 biological children, 2 adopted children, and seemingly brilliant and unflappable, has suddenly won a huge following and the sobriquet “ACB.” At this point, all 47 Democrats and leftist Independents in the 100-member Senate have opposed her nomination, but with 51 Republicans in support, Judge Barrett’s confirmation seems highly likely and imminent. (I explain more about the importance of Supreme Court judges in my September 25 and October 16 columns.)

To listen to the mainstream media and Democrat politicians (granted, they are hard to differentiate), someone who did not know better might be persuaded to believe that President Trump and Senate Republicans are launching a full-scale attack on democracy and all historical norms by seeking to put Judge Barrett on the Supreme Court.

This is false for at least two reasons:

  1. The Constitution tasks presidents with the job of naming new judges, and the Senate with confirming them. In a world where politicians are notorious for promising one thing before elections and delivering the opposite after, in this case, President Trump and Senate Republicans are simply keeping a key campaign promise.
  2. With all respect to the dearly departed, the actual responsibility for this nomination conundrum and its timing actually lies with the late Justice Ginsburg, affectionately known to her fans as “RBG.” Let me explain.

Justice Ginsburg, born in 1933, frequently referred to her Jewish faith and how it informed much of her worldview and decision making. As a highly-educated Jew, surely she knew the many passages in the Jewish holy scriptures warning us that all must someday die; our time on earth is limited for us all. This column opens with just such a warning from the Book of Ecclesiastes. Surely Justice Ginsburg clearly knew, she was not going to live forever. 

Even a simple history teacher from Roanoke, Virginia like me knows the politics and timing involved in judges announcing their retirements. For all the protestations that the courts and judges are “apolitical,” we all know that is not true. Savvy judges know that if they retire when the White House and Senate are in “friendly” hands, they will probably be replaced by a judge with a similar mindset and political philosophy. In contrast, if a judge retires (or dies in office) while the White House and Senate are in “unfriendly” hands, he or she may be replaced by someone from the other party. This is just the reality. If you and I understand this, surely RBG did too.

President Clinton, a liberal, appointed Judge Ruth Bader Ginsburg to the Supreme Court in 1993. In today’s hyper-polarized environment this is hard to believe, but as recently as 1993, even a known hard-left judge like Ginsburg was approved by the Senate by a whopping 96-3. Most of the Republicans voted to confirm her; contrast that with today, where NO Democrats indicate they will confirm Judge Barrett.

In 1999, at age 66–already one year past the “normal” retirement age, Ginsburg was diagnosed with colon cancer. She recovered. In 2001, Republican George Bush Jr. entered the White House, and Justice Ginsburg remained ensconced in the Supreme Court.

In 2009, fellow liberal Democrat Barack Obama entered the White House, and RBG was diagnosed with pancreatic cancer, known as one of the most deadly cancers one can get. Not only did Obama win a landslide in 2008, but the media-induced frenzy and years-long hate-fest against President Bush and all Republicans paid off big, with huge Democrat margins in both the House of Representatives and Senate. 

By July 2013, things were changing. President Obama was in his second and last term, the House had flipped back to GOP in 2010, and polls indicated the Senate may flip from Dem back to GOP that November (which it did). Against that backdrop, Pres. Obama quietly invited Justice Ginsburg to a private lunch in the White House.

Treading gingerly and wishing to avoid a back-fire, Obama did not ask RBG to retire. After all, he knew she had a lifetime appointment and he had no authority to make her quit. However, he gently informed her that the Senate might flip to GOP after November, which would make it much harder for him to get a liberal judge like her on the bench in her place; plus, his own term was to end in just three years. 

Not long before that lunch, Sen. Patrick Leahy, (D-Vermont), chairman of the Senate Judiciary Committee, had also broached the idea with Justice Ginsburg: he noted the changing political environment and diplomatically hinted that she may want to retire while the White House and Senate were still in Democrat hands.

However, no dice. 

At the time of that lunch, Justice Ginsburg was already 80–a solid 15 years past normal retirement age–and in year 4 of her battle with pancreatic cancer. 

I do not doubt that Ginsburg enjoyed her job, and the enormous prestige and power that comes from being a Supreme Court Justice– in other words, one-ninth of one-third of the US federal government, must have a heady effect. Maybe she was hoping to hold on during the rest of the Obama years (which she did) and have the pleasure of tendering her resignation to the first woman president, Hillary Clinton.

Regardless of her rationale, she refused the chance to be replaced by a Democrat president and Senate and instead rolled the dice and had her replacement chosen by President Trump. 

This is why we can truly say, “RBG gave us ACB.”

Scott Dreyer in his classroom.

– Scott Dreyer


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