Supreme Court Justice Ruth Bader Ginsburg missed three consecutive days of oral arguments with her peers over a two-week session that began this past Monday and continues next week. Her recent absence is the first time in her 25-year tenure that she has ever been unable to attend these oral sessions; accordingly, this turn of events has gotten the Trump administration and his conservative allies poised for what they anticipate is an imminent Supreme Court nomination.
Justice Ginsburg, aged 85, underwent surgery in late December to remove two cancerous lobes from her lungs. She has undergone surgery for cancer twice in the past but had still been able to make it to oral arguments while recovering. Her spokesperson did not set a date for her return, but did not rule out a reappearance at next week’s oral argument sessions. Were Ginsburg to lay low for the rest of this January session, she would have another month to fully recover. (The next session begins on February 19th.)
“I think a lot of people are getting scared because they are concerned about the balance of the court,” said the chief of thoracic surgery at New York City’s Mount Sinai Hospital, in an interview with CNBC. “[But] I’m confident she’s not going anywhere. She’s going to be back on the court.” He noted that her fans should take heart that she’s been released from the hospital.
The recent surgery followed closely on the heels of an injury she sustained in November. That month, Ginsburg suffered fractured ribs from a fall. According to her nephew Daniel Stiepleman, the screenwriter behind the Justice’s biopic On the Basis of Sex, she was lively and back to the grind shortly after being released from the hospital. “The last I heard she was up and working, of course, because what else would she be doing, and cracking jokes,” he said at the time. “I can’t promise they were good jokes but they were jokes.”
Anticipating Another Trump Nomination
Reports have begun to circulate that the White House is beginning to put together a short-list of candidates who would be in the running to replace Ginsburg should she vacate the bench. “[The] idea is not to be opportunistic, but just to be prepared so we aren’t caught flat-footed,” explained an anonymous source to a Politico reporter.
In the near term, replacing a Supreme Court judge with another candidate with conservative leanings would allow President Trump to enact some of the items on his wish list that are currently being disputed by the lower courts. A CNN report noted that questions concerning DACA, LGBTQ protections, and abortion rights could be brought to the table by the end of this Supreme Court session. In the long term, of course, another Trump nomination would stack the bench with conservatives and shape federal policy for years to come, far beyond the reach of his presidency.
In a 2013 interview with the New York Times, Ginsburg indicated that she would keep her place on the bench “as long as I can do the job full steam,” but acknowledged that, as an octogenarian, she was at the unpredictable mercy of her age. She emphasized that she wouldn’t base her retirement plans on who was in office at the time.