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Law & the Courts

Some Counterfactual Thinking

Justice Ruth Bader Ginsburg speaks at a conference in Long Beach, Calif., October 26, 2010. (Mario Anzuoni/Reuters)

Election Day is one week away. Can you believe it? On the menu today: contemplating what would be different, and what would be the same, if Ruth Bader Ginsburg had retired in 2013 instead of staying on the Court until her death earlier this year; a couple of flubbed words on the campaign trail; yes, people really are announcing Senate bids . . . for the 2022 cycle; and Mike Bloomberg procrastinates.

What If Ruth Bader Ginsburg Had Retired in 2013?

Back in July 2013, President Barack Obama had lunch with Ruth Bader Ginsburg, then 80, the Supreme Court’s oldest justice, and a cancer patient. Imagine if instead of vaguely alluding to the midterm elections, and subtly hinting Ginsburg should retire, Obama had been direct: “My party is probably going to get thrashed in the upcoming elections, we’re going to lose our majority in the Senate, and I will be unlikely to appoint a like-minded successor to you on the Court. If you really care about preserving our mutual vision for America and its values, you need to retire sometime this year or next year.”

In this alternate universe, Ginsburg retires sometime in 2013, when the U.S. Senate has 53 Democrats and two independents who vote with the Democrats in Bernie Sanders and Angus King. (From June until October in 2013, Jeffrey Chiesa was the Chris Christie-appointed Republican senator from New Jersey.) Patrick Leahy is the chairman of the Senate Judiciary Committee.

With Ginsburg retiring, Obama selects Diane Wood, a judge on the U.S. Court of Appeals for the Seventh Circuit, who had been the runner-up to Elena Kagan several years earlier, and interviewed at the White House during the two previous vacancies. A few Democrats worry about her age, 63, but she has no scandals, is fully qualified, and her confirmation hearings run smoothly. Wood is confirmed by a vote along the lines of that of Kagan, 63-37.

Ruth Bader Ginsburg retires to a comfortable life as a much sought-after speaker and guest lecturer at law schools. Meanwhile, on the Supreme Court, Wood doesn’t vote any differently than Ginsburg did in our timeline. All of the unanimous votes and 5-4 decisions since 2013 would remain the same.

In this alternate vision of history, Antonin Scalia would still pass away in his sleep February 12, 2016. Obama would still nominate Merrick Garland, and the Senate GOP would still refuse to hold a hearing or vote on him. Or perhaps, with Obama having already appointed three justices, there would be a broader recognition that Garland replacing Scalia would create an “Obama Court” and that three was enough. (President Richard Nixon nominated four justices who were confirmed, and Dwight Eisenhower nominated five who were confirmed.) The 2016 election would play out as it did . . . and Donald Trump would win, replace Scalia with Neil Gorsuch, and the Court would reach the same decisions, with the same balance, it has for the past four years.

In this scenario, one of the two biggest changes on American life is that Ginsburg never turns into a political and pop-culture icon. She remains a much-respected jurist and a celebrity in legal circles, but no one ever makes the RBG-themed action figures, apparel, pins, Christmas ornaments, T-shirts, earrings, or a Ruth Bader Ginsburg board game. Liberals are never consumed with fears about her health, we would never see soft-focus news articles about her personal trainer and workout routines, and no one would ever market, “Please Don’t Die, RBG” coffee mugs.

The other big effect is that on September 18 of this year, Ruth Bader Ginsburg would die a retired justice and never set up the nomination fight we’ve seen over the past six weeks. Amy Coney Barrett would not have been confirmed yesterday. The Supreme Court would remain split 5 to 4 to the right, although there are plenty of grassroots Republicans who would argue, considering John Roberts’s record, it should really be considered 4-1-4. There is always a justice perceived to be the swing vote — first Sandra Day O’Connor, then Anthony Kennedy.

Did this nomination fight have an effect on the presidential race? The presidential-race polling hasn’t shown any dramatic movement, but Barrett is a fairly popular nominee, with support among Democrats and independents growing. The Democratic effort to paint Barrett as an extremist, with the constant comparison to the dystopian novel The Handmaid’s Tale, went nowhere. This is one of the more popular decisions President Trump has made in a while, and it ended in an indisputable win. The Atlantic characterizes Barrett’s confirmation as a “Hail Mary Touchdown.

Michael Brendan Dougherty observes:

Some of Barrett’s opponents and critics hate the idea of her being in ‘Ruth Bader Ginsburg’s seat.’ But, the individual justices don’t own their seats. And Ginsburg’s jurisprudence does not define the seat. Remember that Ginsburg filled a vacancy left by Byron White. And for those keeping score ideologically, Byron White was a dissent in the ruling in Roe versus Wade. If liberals can say that they have ‘lost’ a seat, conservatives may just as well say that this is a seat that “reclaimed,” rather than a true advance.

Look, Senator, the Coronavirus Death Toll Is Bad, but It’s Not That Bad

Presidential candidates give a lot of speeches, they speak off the cuff a lot, and that means they’ll make mistakes. I’m fascinated by those who insist that Biden’s recent “four more years of George, uh, George, uh, he, uh, are going to find ourselves in position where if uh Trump gets elected uh we are going to be uh, going to be in a different world” means he must have meant George Lopez, and not George Bush. Biden may have been on verbal autopilot and started saying his previous epitome of all darkness and malevolence in the universe, George W. Bush, instead of Trump. This, by itself, doesn’t mean Biden is going senile. There’s no evidence Biden thinks he’s running against the son of a president and the man who invaded Iraq. But it fits a pattern of Biden flubbing his words — declaring that he has put together “the most extensive and inclusive voter-fraud organization in the history of American politics” — and it’s the sort of thing that people will notice in an almost 78-year-old potential president. What did everyone think was happening when Saturday Night Live had Woody Harrelson impersonating Biden and declaring, “I’m always one second away from calling Cory Booker ‘Barack’”?

Over at RedState, Sister Toldjah notices that twice Kamala Harris has lamented that “an epidemic that has taken the lives of over 220 million Americans in just the last several months.” Presumably, Harris meant 220,000. No one thinks Harris is senile; she just isn’t paying attention to what she’s saying, mixes up two numbers, and asserts that two-thirds of all Americans have died since spring.

Barack Obama didn’t think there were 57 states. He meant to say 47 and said “fifty-seven” states. It’s just funny because “how many states are there?” is the sort of easy question they ask when they fear you’ve suffered a concussion.

They Seem to Start Earlier Every Cycle

Yesterday I noted that a former Wisconsin state assembly leader filed papers to run against Ron Johnson in 2022.

Former Brighton, Ala., mayor Brandaun Dean has filed papers to run for the U.S. Senate in Pennsylvania, where Republican Pat Toomey is retiring.

ADDENDUM: Hey, remember when Mike Bloomberg was going to spend a bazillion dollars to help elect Joe Biden?

The New York Times reports that “Bloomberg is funding a last-minute spending blitz to bolster former Vice President Joseph R. Biden Jr. in Texas and Ohio, directing millions toward television advertising in two red states that have shifted away from President Trump in the general election.” Bloomberg will spend $15 million “to air intensive ad campaigns in all television markets in both states.”

In Ohio, 2.1 million have already turned in ballots.

In Texas, 7.3 million have already voted.

“Mike can get it done . . .” at the last minute, apparently. Just how many voters out there haven’t voted, will vote, are still undecided, and will be swayed by TV ads in the next few days?


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