What if Ruth Bader Ginsburg Retires During the Senate Trial?

Supreme Court Justice Ruth Bader Ginsburg speaks in Pojoaque, N.M., on Aug. 19, 2016. (AP Photo/Craig Fritz)

Democrats know that Trump won’t be convicted in the U.S. Senate. Yet, we’ve seen them push for a fight over witnesses that could very easily extend the trial longer than necessary at a time they really don’t want to be pulling their candidates off the campaign trail. So, what’s their strategy exactly? Is it about pulling their radical and less electable senators away from early voting states and clearing the way for the supposedly more electable Joe Biden to get the advantage?

But, if the Democrats insist on a whole slate of witnesses, the possibility of Republicans calling Hunter Biden, and perhaps Joe Biden, are very real possibilities, too.

Perhaps there something else going on.

It has been speculated that impeachment is really about blocking Trump from getting another Supreme Court justice. Mark Levin presented this theory in December, telling the story of his neighbor who believes Democrats are hoping the impeachment “black mark” will cripple Trump’s ability to fill another vacancy. The most likely scenario is a vacancy left by Ruth Bader Ginsburg, who has been battling cancer. “‘And should she have to leave the bench, by hook or by crook, they want to be able to say that not only will we not allow this president or, for that matter, any Supreme Court Justice in the remaining—whatever number of months—of his presidency, but we will never allow an impeached president to appoint anybody else to the Supreme Court, whether he wins reelection or not.'”

Kamala Harris virtually confirmed last week that impeachment is about blocking Trump from filling vacancies in the judiciary, so it’s quite clear that the issue of judges and justices is a part of the Democrats’ thinking when it comes to impeachment. But, perhaps there’s something else at play.

Ruth Bader Ginsburg’s recent health issues have put Democrats on edge. Despite the fact she recently said she’s “cancer-free,” she’s had multiple recurrences over the years, and there’s plenty of reason to believe that she’s not healthy and is looking to retire sooner than later should an opportunity to do so arise. The Senate impeachment trial might be that opportunity.

The Senate Judiciary Committee has effectively closed up shop until after the trial. No new nominations will be considered until it is complete. So, if Ruth Bader Ginsburg decides to retire during the duration of the Senate trial, Democrats will use every trick in the book to prevent Trump from nominating a successor. Democrats could use delay tactics to extend the Senate trial as long as possible, shortening the window for Trump to be able to make a nomination to fill the vacancy, perhaps long enough that Democrats could effectively argue to the public that it is too close to the election for Trump to make such an important nomination.

This would give Democrats hope on two fronts: Trump could be defeated in November, which would make it politically impossible to fill the vacancy. Or, Trump could win reelection but lose the Senate, which would still likely shift political winds against Trump’s nominating a successor for RBG until after the new Senate is in session.

If RBG does actually retire during the course of the Senate trial, it’s easy to believe that Democrats will engage in shenanigans to keep the trial going as long as possible, and prevent Trump from being able to nominate a replacement until it’s politically impossible for him to do so until after the election. This may have been part of McConnell’s calculation in creating a “kill switch” to end impeachment if necessary.

Even a relatively short delay could give Democrats the cover they need to argue that Trump should not make any Supreme Court nomination until after the election. Democrats are still seething over how McConnell blocked Merrick Garland from getting considered by the Senate, and they obviously believe they’re entitled to revenge—which they arguably got with their bogus smears of Brett Kavanaugh, but they don’t see it that way. If a vacancy opens up at any point in the 2020 calendar year, Democrats will no doubt cited McConnell’s blocking of Merrick Garland—ignoring the fact that the situation is entirely different, since the president’s party controls the Senate this time.

RBG may not want to retire until a Democrat is president, but it’s hard to imagine why she wouldn’t want to retire and enjoy her remaining years without the pressures of the Supreme Court on her shoulders. The impeachment trial might just give her that chance.



Matt Margolis is the author of Trumping Obama: How President Trump Saved Us From Barack Obama’s Legacy and the bestselling book The Worst President in History: The Legacy of Barack Obama. You can follow Matt on Twitter @MattMargolis