by George S. Bardmesser
I am a lowly lawyer who has never argued before the Supreme Court, and never will. I am not a constitutional scholar, Justice Ginsburg has never heard of me, and I know that in the grand scheme of things, my opinion matters to her very little (and almost certainly not at all). Nevertheless, I hope Justice Ginsburg will forgive my presumptuousness, and will entertain this immodest, yet (I believe) very respectful, sincere, timely, and practical proposal.
There is no sense ignoring the herd of elephants stomping around the room, so I’ll just say it: Justice Ginsburg is dying. This is the truth, however unpleasant and (to many) unfortunate. She is a woman of many accomplishments, yet she is now very old and very ill. To quote the immortal words of Ryan Reynolds in “Deadpool”: “Cancer is a shitshow.”
Justice Ginsburg is 86-years-old. (Yes, I looked it up in Wikipedia—she turned 86 in March. Happy Birthday, by the way, Justice Ginsburg!) Even with the best medical care in the world, she can’t hang in there for much longer. This is a medical reality. That RBG is still able to function at a high level at age 86 is impressive. But, let’s face it, every extra day is a miracle.
Now, it is true that nobody can make her do anything. So she might stay right where she is for another year, or two, or maybe even three. She could write a few more dissenting opinions, and they will delight the progressive partisans—but they won’t matter one whit out here, in the real world. She can join dissenting opinions written by other liberals, but they would be just footnotes in history—at best. She will get invited to adoring leftist confabs, where she will “accidentally” say nasty things about Trump, and every “news” outlet will quote it with relish. And that won’t matter one whit, either.
Frustrated, Furious and Bitter
The truth is, Ginsburg has more impact now as a movie character than as a Supreme Court justice. Her judicial legacy (such as it is) is evaporating, one opinion at a time. She soldiers on, but she will never be in a majority on any opinion of any significance.
She will probably never admit it in public, but all those progressive journos and liberal law profs who begged her to retire back in 2015 were right. Yes, just like everybody else, she thought that Hillary was a done deal, RBG would retire right about now, Hillary would appoint her successor, and everything would hum along according to plan. Justice Ginsburg believed that the emerging Democratic majority, intersectionality, and other postmodern claptrap would deliver for the Left and for her.
It didn’t happen. The Donald surprised everyone (including himself). Liberals lost their collective mind and remind us daily that they are still busy searching for it. It will be a long, drawn out, and probably fruitless search.
Ginsburg must have watched Rachel Maddow on election night. She knew right there and then, from the glum, shocked disbelief on Maddow’s androgynous face, what it all meant for the court—and for her. And she can read the tea leaves now—with the Democratic Party descending into utter nutterism and Special Counsel Robert Mueller’s report saying “no collusion,” with the economy humming along and Trump refusing to get us involved in some nation-building adventure or other, it’s sure starting to look like a Trump re-election next November. Who knows, maybe even a landslide.
It is easy to see why Justice Ginsburg is frustrated, furious and bitter. She is fuming at Trump in resentful silence, when what she really wants to do is scream her head off about the contempt she feels for him (and for everyone who voted for him). She is fuming at the deplorables, just like her old friend Hillary. She is fuming at the New York Times, the Russians, the Macedonian hackers, black Americans, white Americans, white working men, black working men, white women, married women, women with college degrees, men without college degrees, Democrats, Republicans, James Comey, Joe Biden, Obama, Wisconsin, Michigan, Pennsylvania, floppy disk drives, and everyone else who didn’t get the memo about the big plan to flip the Supreme Court from conservative to liberal.
Most of all, she seethes with rage from knowing that once she is gone, Trump will nominate Amy Coney Barrett of the Seventh Circuit as her replacement—and for any progressive, just thinking about Amy Coney Barrett sitting in RBG’s seat is like eating razor blades.
The (100 Percent Confirmable) Anti-Ginsburg
Justice Ginsburg hates the very idea of Amy Coney Barrett. Her clerks avoid mentioning Amy Coney Barrett’s name in her presence because it drives her to apoplexy. Amy Coney Barrett literally embodies everything that Justice Ginsburg detests about conservatives. Amy Coney Barrett is extraordinarily smart, young, articulate, talented, generous, attractive, rock-solid in her beliefs, has raised many children, is unintimidated by the Left, is photogenic and telegenic—and, with 53 Republicans in the Senate, 100 percent confirmable. No more Jeff Flakes, no more “highly credible allegations” of multiple gang rapes of college women by high school kids, no more yearbooks, no more stalling, and no more bullshit.
Amy Coney Barrett is confirmable even if the Democrats and progressives start chewing on their office furniture in their predictable foam-at-the-mouth rage. She is confirmable even if every member of the ACLU spontaneously combusts during the confirmation hearings. She is confirmable even if every progressive loonbag in a 300-mile radius dresses up in a pink vagina costume, converges on the Capitol, and burns down half of Washington, D.C. She is confirmable even if Senator Pocahontas helps Senator Hirono commit seppuku with a tomahawk right there on the Senate floor.
The Left can’t defeat her, can’t Bork her, and can’t stop her.
The reality is that Justice Ginsburg and her progressive friends loathe Amy Coney Barrett, the next Justice of the Supreme Court, viscerally, reflexively and unconditionally. And yet, Senate Majority Leader Mitch McConnell (R-Ky.) will get Amy Coney Barrett confirmed, and Amy Coney Barrett will take RBG’s seat on the court. And whether RBG is still with us down here, or with the Big Guy up there in the sky, she will know that it is all her fault.
A Compromise in the Making?
But it doesn’t have to be this way. Justice Ginsburg has the power to change that future. She has one crucial card still left to play: the timing of her retirement, provided she doesn’t wait until they wheel her out, feet first.
Justice Ginsburg should make a deal with Trump about her successor. Now. While she still can.
She should use her ultra-secret communicator/decoder ring to call Trump and tell him she needs to talk to him privately. Then she should take the secret underground tunnel from the Supreme Court to that ginormous $5 billion nuke-proof underground super-bunker that Barack Obama built under the White House. (Pardon me, I mean that small storage basement under the White House that Obama renovated at the cost of $5 billion.)
Then, sit down with President Trump under the cone of silence in the most secure of all the super-secure rooms, swallow for the last time her burning anger at the unbearable indignity of being in his presence, and offer him a deal: she retires now if—and only if—he agrees to name a “reasonable” successor that she can live with. Like, say, Judge Britt Grant of the 11th Circuit?
Grant is a reasonable conservative—nobody on the Right could meaningfully object to her, but she is no fire-breathing crusader. (She is pretty hot, too, for a judge—and, let’s be honest, the Supreme Court could use her to improve its institutional image.)
Britt Grant doesn’t tickle RBG’s fancy? Fine—she can make a deal with Trump to nominate Allison Eid of the 10th Circuit. Eid is a solid conservative, and also no fire-breather. But I wouldn’t drive too hard a bargain either, if I were RBG, because the alternative is Amy Coney Barrett. RBG’s left-wing friends reach for their hypertension medications at the mere mention of her name. Ginsburg’s leftier left-wing friends have already OD’ed on Prozac. But Justice Ginsburg—and only Justice Ginsburg—can change that.
My point is, Ginsburg has something right now that she can trade. But that something has a looming expiration date. One more “episode” with “nodules” in her lungs and Trump might decide to take a pass on this one. Or he might not even need to decide.
Does Trump have to make a deal? No. Of course not. He can decide to wait her out. That’s his prerogative. But if I were him, I’d take the deal—so long as the name is acceptable to the Republican base, even if it’s not the reddest red-meat conservative. After all, RBG just might outlast him. Unlikely, but possible—he might be worried about her writing opinions from an ICU while being hooked up to a heart-and-lung machine. And this deal, on the other hand, is a sure thing. A bird in hand, as they say, is better than two in the bush. For Justice Ginsburg, this is the path forward. The only path forward.
RBG’s Patriotic Choice
Trump can have three-quarters of a loaf guaranteed, but Justice Ginsburg still gets one-quarter of a loaf—a successor who just might become a swing vote on at least some issues.
Of course, with no deal, if she dies tomorrow, her progressive friends get nothing. More to the point, if she dies tomorrow, her progressive friends get Amy Coney Barrett.
During the confirmation process, RBG can drop hints that she thinks Britt Grant (or Allison Eid, or whoever) is about as good as can be expected from Trump, so RBG is totally on board with Trump’s choice. She can go to Starbucks with Britt Grant a few days before the hearings, and order two lattes, then sit and chat amicably about girly things of no consequence. All the customers will go gah-gah, and the videos will go viral in minutes. After all, we don’t want the nomination to fail. Because Trump would then be free to nominate that blonde Catholic woman judge from the Seventh Circuit, whose name I won’t mention again, since I know it drives Justice Ginsburg batty (and I’d rather she was thinking positive thoughts, in the astronomically unlikely event she actually decided to read this).
I hope Justice Ginsburg will forgive my impertinence in offering advice like this. I also hope she will forgive the blunt way in which I express myself, but I speak from the heart, and I truly feel that this would be the right thing for her to do. It is the best choice for everyone, out of all the choices. It is a statesmanlike choice.
In fact, it is the patriotic choice. John F. Kennedy once said, famously: “Ask not what your country can do for you, ask what you can do for your country.” Making a deal with Trump to replace herself with Britt Grant is what Justice Ginsburg can do for America today.
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George S. Bardmesser is an attorney in private practice in the Washington, D.C. area.