The potential nomination of President Donald Trump’s third Supreme Court justice in his first term could’ve been avoided, a viral meme suggests.
A progressive Supreme Court justice could have been confirmed by the Senate if Justice Ruth Bader Ginsburg had retired under President Barack Obama, the social media post claims.
Ginsburg died Friday after a battle with pancreatic cancer, leaving open a seat on the country’s highest court and setting off a fierce political battle over her replacement. The vacancy has led to a national debate over whether it should be filled prior to Election Day on Nov. 3 or during a lame-duck session of Congress afterward.
Democrats and some Republicans have said they are opposed to filling the seat within weeks of Election Day, but both Senate Majority Leader Mitch McConnell, R-Ky., and President Donald Trump said they intend to move forward with the confirmation process — with a nomination coming as soon as Sept. 26.
A meme, technically a screenshot of a tweet, posted on Facebook Sept. 18, the day Ginsburg died, suggests that if Ginsburg had retired when she was 80 years old in 2013, Obama could have pushed through the confirmation of a liberal justice, because Democrats controlled the Senate at the time.
Ginsburg was nominated to the high court by President Bill Clinton and assumed the role on Aug. 10, 1993, when she was 60 years old. Two decades later, early in Obama’s second term, calls for Ginsburg’s retirement began, according to The New York Times.
Proponents of her retirement argued that a strategic decision for the Democrats, who held the Senate majority until 2014, would include the chance to confirm another liberal justice on the court.
“It’s certainly true she could have retired at that time. She could have retired at any point,” said Suzanna Sherry, the Vanderbilt University Herman O. Loewenstein Professor of Law. “As far as dying in office or retiring, I don’t think there’s a trend either way. Justices certainly have died in office, justices used to die very early, but a lot of them just left.”
Ginsburg’s death marks only the fourth time in more than 50 years that a Supreme Court justice has died while in office. Justice Antonin Scalia died in 2016, and before that, Chief Justice William H. Rehnquist died in 2005 and Justice Robert Jackson in 1954.
In a 2012 blog post, Marquette University Law School noted that 38 of 57 Supreme Court justices who served before 1900 died in office, while 39 of 46 who have served since that time left in retirement. And for 50 years —1955 to 2005 – not one justice died while in office.
“Why was it so much more common for justices to die in office during the Court’s earlier history?” the blog’s authors ask. “A shorter life span for the justices is clearly part of the answer. Seventeen of the first 38 justices to die while in office died prior to their 70th birthday. In contrast, the six justices who have retired since 1990 had either reached, or were approaching, their 70th birthdays at the time they stepped down.”
Those retirees include Sandra Day O’Connor (1981-2006, retired at 75), David Souter (1990-2009, retired at 69) and John Paul Stevens (1975-2010, retired at 90).
lear choice not to retire
Although she could have done so at any point, Ginsburg repeatedly made it clear she did not plan to retire anytime soon.
In fact, in 2019, she defended her decision to stay on the Supreme Court, despite some suggesting she should have stepped down during Obama’s second term.
“When that suggestion is made, I ask the question: Who do you think that the President could nominate that could get through the Republican Senate? Who you would prefer on the court (rather) than me?” she said, CNBC reported.
In 2013, Ginsburg told USA TODAY that she planned to stay on the court as long as she could.
“As long as I can do the job full-steam, I would like to stay here,” she said. “I have to take it year by year at my age, and who knows what could happen next year? Right now, I know I’m OK.
A Democratic majority in the Senate lasted until the 2014 midterm elections, giving Obama nearly two years of legislative control that could, in theory, have been used to push through a progressive nominee.
“But we don’t know who Obama might have nominated. If you look at who he did nominate, I don’t think (Associate Supreme Court Justice Elena) Kagan is an ultra progressive. I think it’s fair to call (Associate Supreme Court Justice Sonia) Sotomayor one. And if you look at this third pick, Merrick Garland was definitely not,” Sherry said.
Kagan, considered part of the liberal wing but who often decides cases in a more moderate fashion, was confirmed in August 2010. Sotomayor, usually one of the court’s more liberal voices, was confirmed in 2009, in his first term.
Garland, Obama’s nominee to replace Scalia, was not confirmed after the Senate’s Republican majority refused to hold confirmation hearings in the last year of his presidency. Garland was widely considered to be a moderate choice.
Also, at the time of their nominations, Kagan was 50 years old; Sotomayor, 54; Garland, 63.
Ginsburg herself, in a 2014 interview, cast doubt on whether Obama could find a successful nominee.
“If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. (The Senate Democrats) took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided. As long as I can do the job full steam…. I think I’ll recognize when the time comes that I can’t any longer. But now I can. I wasn’t slowed down at all last year in my production of opinions,” Elle reported.
Our rating: Missing context
While it’s true that Ginsburg could have retired at age 80, or at any time, there is little evidence to support or deny that an “ultra-progressive” jurist in their 40s would have been nominated or confirmed during Obama’s administration, even with a Democratic Senate majority. We rate this claim as MISSING CONTEXT because it presents a conclusion not supported by the underlying facts.
