WASHINGTON, DC – National networks and pundits are breathlessly repeating rumors that Justice Ruth Bader Ginsburg will imminently be leaving the Supreme Court and that the White House is preparing for an all-out confirmation war. But parts of those reports are definitely false, and the rest may be false as well.
Ginsburg had surgery on December 21 to remove cancerous nodules from one of her lungs. The cancer was discovered when doctors were treating her for broken ribs that she suffered as a result of a fall in her chambers.
This week she is still recovering at home from the surgery and thus missed oral arguments at the Court. She read the legal briefs and transcripts of this week’s cases, however, and will participate in those decisions.
Politico‘s Eliana Johnson and Gabby Orr then reported that they had heard from sources that the White House was preparing for Ginsburg’s imminent departure from the Court and working with key external allies for an all-out war for the confirmation of whichever conservative judge President Donald Trump picks to replace the iconic liberal of the Supreme Court.
Other outlets and pundits are repeating Politico’s story.
The problem is that one of the three claims in the story is completely false, and the other two claims are likely false as well.
Breitbart News spoke with key White House and Senate Judiciary Committee staff. While they routinely update their plans on potential Supreme Court vacancies because they should always be prepared for the unexpected, there is no urgent work going on for an imminent Supreme Court vacancy — on either end of Pennsylvania Avenue.
Additionally, Breitbart News spoke with several of the White House’s key allies on judicial confirmations — leaders who are close to the president, consult directly with the White House, and would be essential for confirming a Supreme Court nominee.
Every single external partner insists that they have not been contacted by the White House to prepare for a Supreme Court vacancy, and they are unaware of anyone else who has been contacted, either. In short, the report that the “White House has been reaching out to political allies and conservative activist groups” is completely false.
More than one of these leaders said Politico had contacted them, but they made clear to the outlet both that the White House had not contacted them and that they had no reason to believe the Ginsburg rumors were true. Politico did not report on these dissenting voices.
Another rumor that is likely false is that the White House is actively considering “some new names” beyond those under consideration for previous vacancies. President Trump has 25 names on “The List” for Supreme Court vacancies, which he has repeatedly and publicly declared is the roster he will consider for appointments to the nation’s highest court.
Both Neil Gorsuch and Brett Kavanaugh were on that list, with 23 candidates remaining.
The president may add new names to the list over time; he has already expanded it twice. But those additions are made after a thorough vetting both inside and outside the White House to maximize the odds that the president does not waste his time on judges who do not meet his criteria of being in the mold of the late Justice Antonin Scalia.
On that point, one White House adviser said the following, while asking not to be identified because of the sensitive nature of this subject:
Someone on staff must be freelancing, because this all sounds totally inconsistent with what President Trump and his senior advisers have historically said about the judicial selection process. In particular, conservatives should be deeply troubled by the suggestion that the president is being advised to nominate someone who is not on his list of potential nominees.
Regarding the justice’s health, her medical team publicly stated that they believed the surgery was a complete success. Supreme Court Public Information Officer Kathy Arberg informed reporters on Friday, “Her recovery from surgery is on track.”
Ginsburg will continue to work from home next week, as well, during oral arguments.
So where did the rumor come from that Ginsburg will imminently leave the Court?
One senior staff member involved in judicial nominations told Breitbart News that a law clerk for Justice Ruth Bader Ginsburg told a friend that the justice would not be returning to the Court.
Each justice has four law clerks per year, and Breitbart News can neither confirm the rumor nor identify which clerk it is. Of her current clerks, one graduated from Yale Law School in 2014, one from Yale in 2015, a third from the University of Virginia in 2015, and the final one is a 2016 graduate of Yale. Each clerked for a district court and then a court of appeals before the Supreme Court.
Such clerks would typically be in their late 20s or early 30s in terms of age. While it is possible that the justice would confide such explosive information to a clerk and then the clerk would leak that information to a friend, the odds are remote. Justices typically do not share that sort of information, and there have been no leaks from the Supreme Court in over 40 years.
A much more likely explanation, if a law clerk did say something to a friend, is that the clerk was expressing individual concern and speculating about the justice’s future, and that utterance got into the hands of a reporter.
So while it is theoretically possible that Ginsburg plans never to return to the Supreme Court, the White House and Senate are unaware of any such plans and are not gearing up for another confirmation fight anytime soon.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.