Ruth Bader Ginsburg’s Vacancy is About to Become a Bare-Knuckle Brawl
The Democrats Must Adopt a Tooth & Nail Approach to Save RBG’s Legacy
The bare-knuckle brawl over the next Supreme Court justice was set to begin at the announcement of Ruth Bader Ginsburg’s passing on Friday, the 18th of September, 2020.
After years of it being political discussion, the reality of replacing Ruth Bader Ginsburg began with Mitch McConnell’s swaggered declaration minutes after the announcement of her death.
It’s absolutely the woe of RBG’s passing, of seeing a giant move on from us, but it’s also McConnell’s role in how this battle will play out, that already has everyone’s blood boiling.
What makes this Supreme Court nomination so partisan? So ideological?
It’s not only Mitch McConnell’s hyper-partisanship and today’s political ultra-hyper-partisanship and the Democrats’ inability to nominate a Supreme Court justice past a Senate majority but the muscle and prestige and legacy of the justice that’s going to be replaced.
In 2016, Mitch McConnell refused for a year to entertain Barack Obama’s supreme court nominee, Merrick Garland, having claimed that since Obama was in his lame-duck session, he deemed it appropriate to let the voters decide in the upcoming election. After all, it would have given liberals a majority on the Supreme Court for the first time since the Nixon administration. McConnell even boasted in a speech in Kentucky that one of his proudest moments was when he looked President Obama in the eye and said, “Mr. President, you will not fill the Supreme Court vacancy.”
An unprecedented gambit, it paid off.
Now with tables turned, McConnell has made clear his new contradicting opinion based on amorphous reasoning. Earlier this year, while Ruth Bader Ginsburg’s health was failing her, McConnell, brazen as always, refusing to consider her well-being or his moral and ethical standing, was asked if he would replace her if the opportunity arose. He said, “Oh, we’d fill it.”
Shamelessly setting aside his own rule, he’s now doggedly pursuing not only to fulfill his legacy but to fill the vacancy while Donald Trump is in office. As a tandem, both men are the antithesis to RBG.
Ruth Bader Ginsburg, a feminist icon, a symbol to all aspiring lawyers and legislators, has her judicial legacy in the hands of Donald Trump, a man accused by 13 women of sexual misconduct, including rape, and who daily undermines our constitution, whether by discouraging trust in our intelligence agencies or by his repeated violations of the Hatch Act, and Mitch McConnell, a man who has always put party over country, who even refused funding for coal miners in Kentucky suffering from black lung, a man who got rid of the age-old Senate rule requiring 60 Senators to agree on a Supreme Court nomination so he could ram through not one but two Supreme Court justices. (See: nuclear option.)
With that in everyone’s minds, the onus is then on the American voter.
It’s imperative that every American should vote for their candidate in the upcoming presidential election, but specifically, regarding registered Democrats, they must vote not only for Ginsburg’s legacy but for liberalism generally. But even then, McConnell has assured the American people that no matter if Trump is president in 2020, he will ram his nominee through the process and onto the Supreme Court. Whether we like it or not. Quite an about-face from his “pro-voter” stance last election cycle. Mere hours after the announcement of Ginsburg’s passing, he’s reminded us again of his intent on filling the supreme court vacancy.
Would a filibuster or a delay tactic by this term’s Senate Democrats postpone the hearing process for Trump’s lame-duck appointee? Can the Senate Democrats convince four Republican senators to vote “no” on McConnell’s and Trump’s nominee?
If the Democrats take the Senate and the Presidency, will they have postponed the process long enough to vote against Trump’s nominee and nominate a successor to Ruth Bader Ginsburg? The Democrats have filibustered before, though under slightly different circumstances.
During George W. Bush’s nominations of Chief Justice John Roberts and Chief Justice Samuel Alito, the Democrats, led by Chuck Schumer, argued the appointees were becoming too ideological. That could be seen as a reaction to the historically bruising fact that no Democratic President has made an appointment while Republicans held the Senate since 1895, or it could be fallout from the heated re-count fiasco in 2000. Or, retrospectively, it could be viewed as a legitimate argument, considering it jumpstarted a partisan process of supreme court nominations.
This argument perhaps influenced the 2020 presidential candidate Pete Buttigieg to muse the possibility of expanding the supreme court to 10 mainstays, while five remain interchangeable every few years, or otherwise known as court-packing. This isn’t without precedent. The Judiciary Act of 1789 originally established a six-justice court. It ballooned to 10 during Abraham Lincoln’s presidency and settled on nine under President Ulysses S. Grant. Perhaps if the Democrats delay long enough until after the election, assuming they win the Senate and McConnell doesn’t have any other trick up his sleeve, and they control the White House, Senate, and House, they might be able to write Buttigieg’s new-old idea into law. Much to the chagrin of Republicans, and Democrat’s track record, this might be the best idea.
Whatever their argument and plan this time around, the Senate Democrats need to fight harder and louder and more convincingly than hyper-partisan Mitch McConnell and Senate Republicans did four years ago, to ensure RBG’s legacy doesn’t close on this horrid, ideological note.
To understand the fight over Ginsburg’s vacancy, and to avoid too much despair, in the name of anticipation and aspiration, let us be reminded that RBG’s journey is tragically heroic and her judicial legacy is one to live up to with reverence. Let us be reminded that the fight over her vacancy is not merely to replace a justice, or a fight over originalist interpretations of the constitution over more modern, liberal interpretations, but a fight over a powered legacy.
Attending Harvard Law School and being one of only a few women in the school, Ruth Bader Ginsburg defied sexism in academia, facing verbal harassment while attending. While studying at Columbia Law School, she became the first woman to be on two major law reviews. After graduating, she taught at Rutgers Law School, where she was paid less than men who were her equal or were inferior to her. Nevertheless, she went on to co-found Women’s Rights Law Reporter, a review that focussed on women’s rights. Eventually teaching at Columbia Law School, she authored the first law school casebook on sex discrimination. In 1972, she co-founded the Women’s Rights Project at the ACLU.
After surviving her husband and several battles of cancer, during which she wrote several dissents while recovering from chemotherapy, and after becoming only the second woman on the supreme court (in 1993) where she authored notable majority opinions, including United States v. Virginia (1996), Olmstead v. L.C. (1999), and Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc. (2000), she fought the progressive fight for women’s equality, abortion, gender equality, and international law with success, creating a precedent. At the time of her death, she was the liberal leading voice on the supreme court.
With all the magnificence and accomplishments in Ginsburg’s legacy, let us be reminded, in the words of Roxanne Gay, that the “fate of the country should not rest on one woman’s shoulders, however giant they were.”
Yet, let us be reminded that RBG’s reported final wishes were for us, the American people, to see to it that her vacancy would be replaced only when a new President was elected (ironically McConnell’s wishes four years ago). In that light, her memory can be seen as a revolution.
As has been shown with the civil rights marches and voter turnout during the midterms, one can hope that Democrats and liberal voters see to it that she is succeeded by someone of merit, by politicians of merit.
As a call to arms on the eve of the bare-knuckle brawl against Mitch McConnell and the Senate Republicans, it’s best to be led by Ruth Bader Ginsburg, who, in her 2012 book, My Own Words, so eruditely presaged, “Yet what greater defeat could we suffer than to come to resemble the forces we oppose in their disrespect for human dignity?”