White House quietly preparing for another Supreme Court vacancy

January 8, 2019

White House quietly preparing for another Supreme Court vacancy Diego Grandi / Shutterstock.com

The White House is quietly planning its next Supreme Court appointment in coordination with conservative legal circles in case Justice Ruth Bader Ginsburg steps down, the Daily Caller reported, citing sources involved in the process.

The 85-year-old justice missed oral arguments for the second day in a row Tuesday, her first absence in more than 25 years on the court as she recovers from a December lung surgery to treat cancerous nodules, the latest sign that health troubles are getting in the way of her work.

White House planning for Ginsburg vacancy

Ginsburg’s age and health have fueled speculation that her vacancy could be filled by President Donald Trump, something for which his administration is apparently preparing. Trump has already nominated two conservative justices to the court, and Ginsburg’s seat has generally been predicted to be the one most likely to open up next.

Those involved in the process have developed working relationships through Trump’s successful nominations of Neil Gorsuch and Brett Kavanaugh, and not much is needed in the way of network-building going forward, sources told the conservative news site. Both sources told the Daily Caller that the White House counsel’s office has built strong alliances with conservative legal circles, so the next round won’t require as much preparation.

The White House is instead making “gingerly” steps towards getting a replacement ready for Ginsburg or whoever steps down next.

“Gingerly preparations are underway, not just for Ginsburg but for any SCOTUS retirement,” one source, who worked on Trump’s previous two nominations, told the Daily Caller.

Health troubles underscore progressive anxiety

Ginsburg’s health troubles and advanced age — she is the oldest justice on the court — have caused some liberals to regret that she didn’t retire sooner, when Barack Obama was president and a reliable liberal replacement would have been assured. The possibility of Ginsburg being succeeded by a conservative hand-picked by Trump would be particularly devastating for the pro-abortion left, which has come to admire Ginsburg as a saint-like figure within the progressive pantheon of social justice.

With the addition of Gorsuch and Kavanaugh to the court, many liberals have come to see Ginsburg as the last line of defense against a conservative take-over of the court. Ginsburg has re-assured progressives that she doesn’t plan to retire for at least a few years, but her unprecedented two-day absence this week accented ongoing health troubles that have led many to speculate that her time on the Supreme Court is short.

Speaking to the urgency on the left, one Politico columnist even mused about a hypothetical scenario in which Ginsburg’s supporters could trade days of their lives with Ginsburg to prolong her life.

Ginsburg is recovering from surgery to remove cancerous nodules from her lungs last month, which were discovered after she suffered a fall that left her with broken ribs in November. She has been working from the hospital and then from home, and the court is providing her with transcripts of oral arguments and briefs so she can do her work remotely. The justice has been treated for cancer twice before but has never missed a day of work until now.

Woman to replace?

Heritage Foundation Senior Legal Fellow John Malcolm told the Daily Caller that he thinks Trump will pick a woman to replace Ginsburg, probably appeals court judge Amy Coney Barrett. Social conservatives who wanted Trump to pick the ardent Catholic mother instead of Kavanaugh have held out hope that Trump is keeping her in the bull-pen for the right moment, which many assume will come when Ginsburg retires.

While White House counsel Donald McGahn presided over a historically ugly nomination process in the fight to confirm Kavanaugh, Pat Cipollone, who replaced McGahn, will certainly have his work cut out for him too if Trump nominates a pro-life Catholic woman to replace the justice beatified by the left for her support of abortion. But sources told the Daily Caller that Cipollone is a veteran in Washington legal circles with the right worldview, experience, and connections to handle the next vacancy when the opportunity arises.

“By appointing Pat, Trump made sure he has a White House counsel who is both able to handle the investigation and a movement conservative philosophically aligned with the base of the party,” American Conservative Union Chairman Matt Schlapp told the Daily Caller.

Another source told the Daily Caller that Trump takes pride in his success with nominating Gorsuch and Kavanaugh and that he sees his track record on the judiciary as important to keeping the support of his base. Trump has often touted his Supreme Court record, which even his conservative detractors begrudgingly agree has been impressive.

A third opportunity to appoint a Supreme Court justice before 2020 would fire up Trump’s base, demoralize the left and strengthen his credentials prior to re-election — a true nightmare scenario for the Democrats.


Matthew Boose

Matthew Boose is a staff writer for Conservative Institute. He has a Bachelor's degree from Stony Brook University and has contributed to The Daily Caller and The Stony Brook Press.