Justice Ruth Bader Ginsburg, a pioneering women’s rights lawyer who became one of the most revered jurists to ever grace the United States Supreme Court upon being appointed by President Bill Clinton, died from metastatic pancreatic cancer last night at the age of 87.
The encomiums of her life quickly poured in, first from Chief Justice John Roberts who said, “Our nation has lost a justice of historic stature, we at the Supreme Court have lost a cherished colleague. Today we mourn but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her, a tireless and resolute champion of justice.”
President Donald Trump, speaking after a campaign rally in Minnesota, remarked, “She just died? I didn’t know that. She led an amazing life, what else can you say? Whether you agree or not, she led an amazing life.”
Democratic Presidential Nominee Joe Biden, the leader of Ginsburg’s Senate confirmation hearings in 1993, stated, “In the decades since she has been absolutely consistent and reliable and a voice for freedom and opportunity for everyone. She never failed. She was unflinching in her pursuit of civil rights for everyone. Her opinions and her dissents are going to continue to shape the basis for the law for the generation.”
As the 2020 presidential election enters the home stretch, Ginsburg’s death has the potential to impact its very outcome. The leader of the Supreme Court’s liberal wing knew this and in the days before her passing, dictated a note to her granddaughter Clara Spera which stated that “my most fervent wish is that I will not be replaced until a new president is installed.”
Whether Ginsburg’s wish will be granted remains to be seen, but it is highly possible that the Supreme Court will not have nine justices after election day on November 3rd–one week before it is set to consider a case that could eliminate the Affordable Care Act a/k/a “Obamacare.” My speculation stems from the fact that on average, it takes 70 or so days from selection for a nominee to be confirmed by the U.S. Senate, and that average factors in non-controversial selections with overwhelming bipartisan support, much like Ginsburg’s own 96-3 tally in 1993.
But the days of such bipartisanship are long gone, destroyed, ironically, by Republican intransigence in 2016 when then President Barack Obama nominated Merrick Garland to replace the late Antonin Scalia; Sen. Mitch McConnell stalled the process for 10 months under his stated purpose of allowing the newly elected president to make a choice, which happened in 2017 when Trump nominated (and the Senate confirmed) Neil Gorsuch to the bench.
Sen. McConnell last night quickly signaled that his 2016 Garland precedent will not be followed in 2020, as he told reporters immediately after Ginsburg’s death that President Trump’s nominee would “get a vote on the floor of the U.S. Senate.” Said McConnell, “Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.”
Whether McConnell’s promise will be kept will depend greatly upon whether Senate Democrats can siphon at least four Republican votes against a Trump nominee. The possible Republican defectors include Utah Sen. Mitt Romney, a frequent Trump critic, Alaska Sen. Lisa Murkowski, and Maine Sen. Susan Collins, a moderate who finds herself badly trailing her opponent Sara Gideon. A potential fourth vote could come from Republican Senators Cory Gardner of Colorado or Martha McSally of Arizona, the latter of whom is in a dead heat against astronaut Mark Kelly in a state that is trending against Trump.
Interestingly enough, should the president nominate a justice that is confirmed within this tight window, Democrats, assuming Joe Biden wins this fall (while retaining the House and making the Senate split closer), could push to expand the Court by as many as two new justices, for a total of 11. This could be accomplished by updating the Judiciary Act of 1869, one that allows for such expansion without a Constitutional Amendment.
Still, there is something almost gauche about discussing the life of a powerful figure strictly in terms of a potential replacement; I would be remiss if I did not note that Justice Ginsburg is rightfully revered for her trailblazing life as a top ranked student at Columbia University and Harvard Law, and her advocacy for women’s issues as a lawyer, law professor, and Dean of Columbia law.
Lest we forget that when her career began, that women’s rights were inferior to men in the home and at work, and that women could not even serve on juries. Thus the reason why former President Bill Clinton referred to her as the “Thurgood Marshall of women’s rights” in 1993 due to her work in dismantling gender discrimination. Even then, Ginsburg humbly stated that while honored to be compared to Marshall, that the difference between the two was that “Marshall faced death each time he traveled south to fight Jim Crow laws in court,” while she did not.
Not surprisingly, Ginsburg has faced renewed criticism since her death from Democrats who believe that she should have retired during the Obama administration to allow the former president to select her replacement. Other criticisms that I have read have focused on her comments from 2016 calling Colin Kaepernick and other NFL stars “dumb” for kneeling during the Star Spangled Banner, a position that has not aged well considering that the NFL has since adopted Kaepernick’s social justice push and kneeling tactics (despite his still not being signed to play).
But the simple truth is that no powerful figure can be all things to all people; one could argue that Ginsburg in 2016 believed that Hillary Clinton would soundly defeat Donald Trump, thus allowing her to retire. As to the Kaepernick comments, there were many people of all races who did not initially agree with what was a very controversial stance at the time, as I wrote about in an editorial published in The Hill that year. https://thehill.com/blogs/pundits-blog/civil-rights/296809-latest-police-shooting-shows-why-athletes-kneel
What is clear, however, is that for nearly three decades, Ginsburg sided with the Court’s liberal wing on issues important to ameliorating vestiges of systemic racial discrimination in contracting, education, housing, criminal justice and procedure, and voting. Indeed, her dissent in the Shelby County vs. Holder case still guides voter’s rights advocates to this very minute, as she reminded that the record evidence showed that Alabama politicians were derisively referring to Black voters as “Aborigines” while seeking to dilute their voting power “in 2010–not in the 1870s or even the 1960s,” as she averred. Ginsburg added, “The sad irony of today’s (Shelby) decision lies in its utter failure to grasp why the (1965) Voting Rights Act has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy…Hubris is a fit word for today’s demolition of the VRA.”
Hubris is also a fit word to describe far too many political actors in America, ones endowed with an excessive pride that if we are not careful in the days to come as far as exercising caution in replacing this legendary jurist–a replacement who could tip the scales in a contested election dispute–could find the very Constitution that Ruth Bader Ginsburg fought to perfect rent to shreds.