She should have died later.
Judge Ruth Bader Ginsburg died this evening at the age of 87. I want to mourn her. But even Ginsburg himself realized that there would be no time for that. On her deathbed, she dictated a message that was recorded by her granddaughter: “My deepest wish is that I will not be replaced until a new president is installed.” Shortly before the end of her life, Justice Ginsburg cited a precedent. Here she explicitly relied on the precedent set by Senate Majority Leader Mitch McConnell when he decided to replace a Supreme Court seat vacated after the death of Justice Antonin Scalia (who died in February 2016) until after the November and November elections to keep open the inauguration of a new president in 2017.
McConnell has already indicated that he doesn’t care about this precedent. Within a few hours of Ginsburg’s death he said The Washington Post that Trump’s candidate to succeed Ginsburg will receive a full Senate vote. McConnell will use all of his considerable power to ratify a new Supreme Court Justice in record time: either before the election, if he thinks he can get away with it, or during the post-election lame duck session if Republicans either lose the Senate or the white house.
Ginsburg himself certainly knew that. Her deathbed dictation should not be understood as a fleeting bubble of hope from a dying old lady, but as an admonition to fight against the fiercest defender of women’s rights of her generation. This was their dying contradiction: a message not about what Trump and McConnell should do, but about what we must do. We cannot allow it to be “replaced” until a new president is installed.
The prospects for short-term success are bleak. McConnell has already dropped the filibuster rule for Supreme Court appointments, which means he only needs 50 votes to approve a new judiciary (since the vice president breaks all ties), and he has 53 Republicans. The Democrats would have to convince four of these Republicans to wait until after the election to find a candidate. Even if political pressure could be exerted on Republicans in tight Senate races to reject McConnell’s hypocrisy, the Democrats would have to keep those Republicans on board against McConnell until the next presidential term. It is entirely possible that some of these at-risk Republicans will lose their campaigns anyway, and therefore have no real reason to stay with the Democrats before inauguration instead of voting with their party if they move on to their post-election careers in Republican politics .
There are rumors tonight that some Republican senators could potentially postpone the nomination until 2021. But McConnell hasn’t tightened the screws on them yet. Remember, at first it seemed very unlikely that McConnell could keep the Scalia seat open indefinitely, but he did.
It’s not hard to see how McConnell will control his caucus. Remember, while some Republicans occasionally raise their brows in performative outrage over the latest Trump tweets, almost all of these people advocate the hardcore conservative legal policies that Ginsburg has been against all their lives. Republican senators may not like Trump’s handling of the coronavirus, but they love taking healthcare from millions of people. They love the deregulation that leads to the destruction of the environment. and they consider it a moral imperative to reduce a pregnant woman to the legal status of a medical incubator with a mouth hole that they can ignore.
Given a vacancy on the Supreme Court in an election year, President Barack Obama nominated Merrick Garland, a moderate white man he hoped would be acceptable to moderate Republicans. Obama either didn’t expect McConnell’s unprecedented maneuver to block his candidate, or he thought Garland’s moderate stance would lead other Republicans to oppose McConnell’s move to block him.
We can expect Trump to go in the completely opposite direction. Rather than appoint a moderate Republican lawyer, we can expect him to pull out a fire-breathing archconservative who has already taken marginal positions on abortion rights and the right to shoulder grenades. I have long believed that Republicans would prefer the abortion right decision of a woman, and that’s why I believe the religiously conservative Amy Coney Barrett or the absolute wing nut Neomi Rao are the most likely Trump nominees. Both are extremists who would advocate not achieving a moderate buy-in, but simply to excite the grassroots and “inspire” Ginsburg’s legal legacy.
And they’re both young. Barrett is 48 years old, Rao is 47. Another potential candidate, the sources say speak with The Washington PostRobert Costais Allison Jones Rushing, who is only 38 years old. The candidate McConnell wants to win over the next few months is likely to wield power in this country for the next 30 to 40 years.
It seems like that now List of potential candidates for the Supreme Court Trump, which was produced last week, was released with inside information about Ginsburg’s poor health. I hope Biden is ready to meet Trump’s candidates with his own proposal. People should be able to see the choice Biden would make and compare it to what Trump deems fit to sit in Ginsburg’s chair. This is a fight that I very much think the Democrats would win.
If the Democrats are unable to block Trump’s candidates, if Joe Biden wins the White House and the Democrats recapture a majority in the Senate, then there is only one choice: grab the Supreme Court. As I wrote earlier, the number of Supreme Court justices is set by law, not the constitution. If McConnell can successfully block an appointment to the Supreme Court because a Republican Justice has died under a Democratic President but rushes through a second candidate because a Democratic Justice has died under a Republican President, then McConnell has proven that the Supreme’s composition Court’s a function of crude is political power.
If Democrats ever have that power again, they will Got to Action. The addition of two judges is merely a proportional response required to correct the mistakes McConnell made. The addition of 10 judges, as I advocated, puts the Supreme Court on the path to long-term reform.
This has to be our fight now. We must do everything we can to keep McConnell from occupying Ginsburg’s seat and, it turns out, we must recapture political power and reform a Supreme Court that has been irrevocably broken by McConnell’s continued hypocrisy.
This fight seems daunting, but it is no more difficult than the battles Ginsburg herself fought and won throughout her career. When Ginsburg started, the court did not include women under the due process protection afforded by the 14th Amendment. Ginsburg changed that. When it started, laws discriminating against women were not subjected to heightened judicial review. Ginsburg changed that. As a lawyer, Ginsburg took up cases where men were represented to make a profit for women’s rights and, as a justice, refused to act like their gender was for understanding the problems that faced her desk , irrelevant. Every day of her career has been an uphill battle, and she won many of them.
Ginsburg must not be “replaced” by a conservative whose sole aim is to reverse the progress it has made. McConnell could fill her temporarily vacated seat, but her legacy needs to be defended with the raising of additional judges who are required to continue their work.
I’ve found in my life that most people don’t appreciate the value of dissent. They say that the justice that writes a dissent has lost the battle. They complain that the judiciary’s arguments have no binding legal effect. Why, you ask, do these judges often write so passionately about a decision that has already been made against them?
No one has ever explained the value of dissent better than Ginsburg. She said, “Dissent speaks for a future age. It’s not easy to say, “My colleagues are wrong and I would do it that way.” But the greatest differences of opinion turn into court judgments, and over time their views become the predominant view. So this is the dissident’s hope: that they write not for today but for tomorrow. ”
We’re going to fight as hard as possible today. We have to contradict with all our might, and if we are lucky, our “future age” can and must begin on January 20th, 2021. This age must include additional warriors ready to storm the Supreme Court and rid it of its McConnell-induced illegitimacy.