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US Fact check: No guarantee Obama would've replaced Ginsburg with a progressive justice

21:45  04 october  2020
21:45  04 october  2020 Source:   usatoday.com

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The claim: A progressive Supreme Court justice could have been confirmed by the Senate if Ruth Bader Ginsburg had retired under President Barack Obama

Ruth Bader Ginsburg et al. are drinking from a bottle: Associate Supreme Court Justice Ruth Bader Ginsburg arrives for President Barack Obama address to a joint session of Congress in the House Chamber of the Capitol in Washington on February 24, 2009. © Pablo Martinez Monsivais, AFP via Getty Images Associate Supreme Court Justice Ruth Bader Ginsburg arrives for President Barack Obama address to a joint session of Congress in the House Chamber of the Capitol in Washington on February 24, 2009.

The potential nomination of President Donald Trump's third Supreme Court justice in his first term could've been avoided, a viral meme suggests.

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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.

Start the day smarter. Get all the news you need in your inbox each morning.

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.

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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.

"Just a reminder that Ruth Bader Ginsburg could have casually retired at 80 yrs old under Obama and been replaced by an ultra progressive in their 40s...but they chose not to," the tweet said. "It's not Republicans' or Trump's fault that they get the opportunity to push through a new justice."

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The user who posted the meme on Facebook did not respond to USA TODAY’s request for comment and clarification. The user who posted the initial comment on Twitter stood by the meme and criticized USA TODAY for reporting on the issue.

"The tweet is RGB could have retired at 80 under Obama," Tim Young posted on Twitter in response. "Why would USA Today waste money fact checking it? It's true, as proven by mathematics."

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Ginsburg could have retired at any time

It's true that Ginsburg, like any justice on the court, could have chosen to retire at any point.

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.

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a close up of a woman wearing glasses: Supreme Court Justice Ruth Bader Ginsburg speaks to the 2002 Planum at the Jewish Council for Public Affairs after recieving the Albert D. Chernin Award during a ceremony Monday, Feb. 18, 2002 in Washington. © Pablo Martinez Monsivais, AP Supreme Court Justice Ruth Bader Ginsburg speaks to the 2002 Planum at the Jewish Council for Public Affairs after recieving the Albert D. Chernin Award during a ceremony Monday, Feb. 18, 2002 in Washington.

"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."

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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).

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A 2010 study published in Demography and by the National Center for Biotechnology Information found that from 1789 to 2006, 44.5% of all justices died in office and 47.3% retired from office.


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The study also found that retirements and deaths-in-office debates are likely to fall along politicized lines.

"Political commentators and historical, legal and political researchers have argued that justices cling to office with apparent disregard for their own antiquity, physical infirmity, employment immobility, and pension-based economic security (equal to their full salary)," the study reported.

The authors added: "However, we know of no assertion anywhere that politicized departure offers any instrumental benefit to justices. Indeed, politicized departure is a tendency toward continued service by justices who otherwise would tend to resign from the Court, or accelerated departure by justices who otherwise would tend to remain on the Court."

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Clear 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.

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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.”

Just six months before a 2018 fall that caused rib fractures and an amid an ongoing bout of cancer, Ginsburg indicated she expected to stay on the court for at least another half-decade.

"I'm now 85," Ginsburg said in 2018, according to CNN. "My senior colleague, Justice John Paul Stevens, he stepped down when he was 90, so I think I have about at least five more years."

John Paul Stevens wearing glasses and smiling at the camera: Justice John Paul Stevens, 91, works in his office at the Supreme Court in Washington on Sept. 28, 2011. © J. Scott Applewhite, AP Justice John Paul Stevens, 91, works in his office at the Supreme Court in Washington on Sept. 28, 2011.

Ginsburg made clear, right up until her death, that she did not want to be replaced until after the election.

"My most fervent wish is that I will not be replaced until a new president is installed," Ginsburg said in a statement dictated to her granddaughter, Clara Spera, according to NPR.

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Would Obama have gotten an ultra-progressive nominee confirmed?

A question remains, too, whether Obama could or would have nominated an "ultra-progressive" judge to the high court, and whether the Senate would have approved such a person.

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.

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"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.

Fact check: Ruth Bader Ginsburg planned to stay on Supreme Court at least a few more years

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.

Our fact-check sources:

  • Interview with Suzanna Sherry, constitutional law and Supreme Court expert, Herman O. Loewenstein Professor of Law at Vanderbilt University.
  • USA TODAY, Sept. 21, Fact check: Ruth Bader Ginsburg planned to stay on Supreme Court at least a few more years
  • Ross M. Stolzenberg and James Lindgren, Demography and National Center for Biotechnology Information, U.S. National Library of Medicine, May 2010, Retirement and Death in Office of U.S. Supreme Court Justices
  • Washington Post, Aug. 28, 2019, When do Supreme Court justices retire? When the politics are right.
  • CNN, Aug. 21, 2018, Ginsburg suggests she has at least five more years on the Supreme Court
  • TIME, Aug. 26, 2019, Ruth Bader Ginsburg Makes First Public Appearance Since Pancreatic Cancer Announcement
  • NPR, Sept. 18, Ruth Bader Ginsburg, Champion Of Gender Equality, Dies At 87
  • USA TODAY, Sept. 18, Supreme Court Justice Ruth Bader Ginsburg dies, setting up nomination fight
  • USA TODAY, Sept. 19, Ginsburg v. cancer was a 'remarkable fight': RBG battled five bouts of cancer over two decades
  • USA TODAY, Sept. 19, Trump, Democrats thrust Supreme Court fight forward as a central issue in November election
  • USA TODAY, Sept. 19, Fact check: Post declaring 4 GOP senators' views on filling Supreme Court opening is partly false
  • USA TODAY, Sept. 18, McConnell says Senate will vote on Trump's nominee to fill Ruth Bader Ginsburg's Supreme Court seat
  • USA TODAY, Sept. 21, Donald Trump: I'll probably announce Supreme Court pick on Friday or Saturday
  • New York Times, March 16, 2016, Obama Chooses Merrick Garland for Supreme Court
  • Vox, July 7, 2018, Justice Sotomayor is showing her liberal peers on SCOTUS how to be a potent minority voice
  • FiveThirtyEight, June 27, 2018, Which Justices Were BFFs This Supreme Court Term
  • FiveThirtyEight, Sept. 18, What Ruth Bader Ginsburg’s Death Could Mean For 2020 And The Supreme Court
  • Elle, republished Sept. 21, Remembering Ruth Bader Ginsburg In Her Own Words
  • New York Times, Sept. 21, Why Ruth Bader Ginsburg Refused to Step Down
  • New York Times, Aug. 24, 2013, Court Is ‘One of Most Activist,’ Ginsburg Says, Vowing to Stay
  • USA TODAY, Feb. 13, 2016, Death in office a rarity for modern justices
  • Marquette University Law School Faculty Blog, March 9, 2012, Supreme Court Justices Today Are Unlikely to Die with Their Boots On
  • CNBC, Sept. 18, 2019, Ruth Bader Ginsburg fires back against critics who say she should have retired under Obama: ‘Who would you prefer on the court?’
  • Federal Judicial Center, Accessed Sept. 22,
  • USA TODAY, Sept. 23, A 'superhero' who 'never quit': Justice Ginsburg returns to Supreme Court for final time
  • USA TODAY, Feb. 13, 2016, Justice Scalia found dead at Texas ranch
  • USA TODAY, July 17, 2019, Retired Supreme Court Justice John Paul Stevens dead at age 99
  • USA TODAY, Aug. 4, 2020, Associate Justice Elena Kagan, after decade on bench, emerges as Supreme Court 'bridge-builder'
  • USA TODAY, Aug. 12, 2019, 'The People's Justice': After decade on Supreme Court, Sonia Sotomayor is most outspoken on bench and off
  • USA TODAY, March 12, 2016, Meet Merrick Garland, Obama's SCOTUS nominee

Reach reporter Mariah Timms at mtimms@tennessean.com or 615-259-8344 and on Twitter @MariahTimms.

Thank you for supporting our journalism. You can subscribe to our print edition, ad-free app or electronic newspaper replica here.

Our fact check work is supported in part by a grant from Facebook.

This article originally appeared on USA TODAY: Fact check: No guarantee Obama would've replaced Ginsburg with a progressive justice

Trump on Supreme Court vacancy: 'When you have the votes, you can sort of do what you want' .
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usr: 1
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