The White House is reaching out to political allies and conservative activist groups to prepare for an ailing Justice Ruth Bader Ginsburg’s possible death or departure from the Supreme Court — an event that would trigger the second bitter confirmation battle of President Donald Trump’s tenure.
The outreach began after Ginsburg, 85, on Monday missed oral arguments at the court for the first time in her 25 years on the bench. The justice, who was nominated to the court by President Bill Clinton in 1993, announced in late December that she underwent a surgical procedure to remove two cancerous growths from her lungs.
The White House “is taking the temperature on possible short-list candidates, reaching out to key stakeholders, and just making sure that people are informed on the process,” said a source familiar with those conversations, who spoke on background given the delicate nature of the subject. “They’re doing it very quietly, of course, because the idea is not to be opportunistic, but just to be prepared so we aren’t caught flat-footed.”
Ginsburg had a pulmonary lobectomy, the Supreme Court said in a statement, and her doctors said that post-surgery there was “no evidence of any remaining disease.” She has also recovered from several past health scares. But her departure from the Court would allow Trump to nominate a third Supreme Court justice — the most in one presidential term since President Ronald Reagan placed three judges on the highest court during his second term.
The nine-member court is currently divided 5-4 between its conservative and liberal wings. Ginsburg’s departure would allow Trump to create the Court’s strongest conservative majority in decades, a scenario sure to bring intense opposition from Democrats and liberal activists still furious over the October confirmation of Justice Brett Kavanaugh.
“It would be a brutal confirmation,” said John Malcolm, director of the Heritage Foundation’s Meese Center for Legal and Judicial Studies. “The first two were not easy at all, but this would be much harder in this respect: When Neil Gorsuch was the nominee, you were replacing a conservative with a conservative. With Kavanaugh, you were replacing the perennial swing voter, who more times than not sided with the so-called conservative wing, so that slightly solidified the conservative wing.”
“But if you are replacing Justice Ginsburg with a Trump appointee, that would be akin to replacing Thurgood Marshall with Clarence Thomas,” Malcolm added. “It would mark a large shift in the direction of the court.”
The White House is urging outside allies to be prepared for another bruising confirmation battle should Ginsberg’s health take a sudden turn for the worse, according to four sources with knowledge of the overtures. Outside groups and key players, including the Judicial Crisis Network and Federalist Society executive vice president Leonard Leo, played a leading role in helping to confirm Kavanaugh and, before that, Justice Neil Gorsuch. Leo took a leave of absence from his organization during the confirmation processes for both Gorsuch and Kavanaugh.
The groups have advised the Trump team on everything from potential nominees to political and media strategy, producing television advertisements and blitzing reporters with supportive messaging. Together, the conservative groups spent over $7 million on ads supporting Kavanaugh’s nomination.
The White House has quietly pressed them not to rest on their laurels after Kavanaugh’s nationally-divisive confirmation battle amid charges of sexual misconduct.
The White House did not immediately respond to a request for comment.