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19 September 2020

Ruth Bader Ginsburg: the loss of a US legal giant – and what it might mean for the country

The political fight over Ginsburg’s replacement in the US Supreme Court will define a generation.  

By Emily Tamkin

When I was eight years old, I dressed up as Ruth Bader Ginsburg for a school biography project. She had been appointed to the Supreme Court just five years before, the second woman ever in history to hold the position. Later, during the period of my youth in which I thought I was going to be a lawyer, it was in part because I hoped that if I worked very hard and got very lucky I might clerk for her. She had made a career arguing for gender equality and, with quiet dignity, breaking down barriers in the legal field and in US politics as a woman, mother and Jewish person. Small in stature though she was, she was a giant.

I didn’t think about any of that when I heard that she had died at the age of 87 of complications with pancreatic cancer on Friday night (which, incidentally, was the first night of Rosh Hashanah, the Jewish new year). I thought about her empty seat.

Before she died, Ginsburg reportedly told her granddaughter that her most “fervent wish” was that she would not be replaced until after a new president is installed. After news of her death became public, Democratic Senator Chuck Schumer tweeted: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” In doing so, he echoed the exact words of Senate Majority Leader Mitch McConnell four years ago, when Justice Antonin Scalia died with more than 200 days to go until the presidential election.

In 2016, the Republican-controlled Senate refused to let president Barack Obama’s nominee, Judge Merrick Garland, fill the seat in a presidential election year. So on principle, surely, the Republicans cannot now fill Ginsburg’s seat with President Trump’s nominee? You can argue that Obama did not have the right to fill Scalia’s seat, or you can argue that Donald Trump does have the right to fill Ginsburg’s seat during his first term, but if you argue both, you’re obviously interested in politics, not in principle.

The problem with relying on this argument is that politics is precisely what interests McConnell, then and now. The night Justice Ginsburg died, McConnell put out a statement effectively stating he would not grant her dying wish: Trump’s nominee will get a vote on the floor of the US Senate. McConnell’s statement said Garland was not given a hearing “because we pledged to check and balance the last days of a lame duck president’s second term… By contrast, Americans re-elected 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.” This argument makes little sense. If it was right to wait for the will of the people with less than a year to go in 2016, the fact that the Republicans now control both the Senate and the White House does not mean it is any less reasonable to wait for the will of the people in 2020. But the point is not whether McConnell’s argument makes sense; his argument is window dressing rather than the real point, which – as in 2016 – is political power.

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There are some Republican senators – Alaska’s Lisa Murkowski, for example – who have previously gone on the record to say they would not vote to confirm a nominee before the election. Whether there are enough of them to keep that nominee from taking the seat on the court is yet to be seen. Based on how Republicans have acted and voted since 2016, it is hard to imagine they will wait until after inauguration. (Take, for example, their rushing through of the confirmation of Brett Kavanaugh to his position as Supreme Court justice.)

Filling a Supreme Court seat is one of the most significant acts a US president is empowered to do. Ruth Bader Ginsburg was appointed when I was three years old; I am now 30. The justices a president installs will not necessarily act as the president expects him to, but the justice a president puts in power will unquestionably shape the fabric of the country for a generation. The Supreme Court decides cases that in turn determine who has their humanity fully recognised in the United States. Those decisions are often narrow. In 2015, Obergefell v Hodges, which ruled the right to marry is granted to same sex couples by the constitution, was a 5-4 decision. This June, the Supreme Court struck down restrictive abortion laws in Louisiana – that was a 5-4 decision. (Given how close we are to a presidential election, it is perhaps also worth noting that the 2000 election, Bush v Gore, was also decided by a 5-4 Supreme Court decision.)

There is an argument that states Ginsburg should have retired in 2013 or 2014, shortly after Obama’s re-election, and that, if she had, Americans would not be in this position now. But Ginsburg’s own response was: “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?”

There is now a very real political fight ahead to determine who the US will get in her place. It is a fight that may overshadow the facts of Ginsburg’s life and death, but it will also define a generation and her legacy too. At least one Democratic senator has already vowed to make like Franklin D Roosevelt and try to add more justices to the Supreme Court, should Republicans nominate Ginsburg’s replacement before inauguration. 

It is a shame Americans can’t simply mourn the loss of Ginsburg, and what it means to individuals and society at large. Still, one imagines she would understand. Reading out her dissent to the Supreme Court decision effectively gutting the 1965 Voting Rights Act, it was Ginsburg who, quoting Martin Luther King, Jr, said: “The arc of the moral universe is long, but it bends toward justice,” before adding: “If there is a steadfast commitment to see the task through to completion.”

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