By Mike Gaughan
September 18th 2020 will be remembered as a day of mourning in America.
On Friday evening, Justice Ruth Bader Ginsburg – the second woman ever to sit at the US Supreme Court – died from complications with metastatic pancreatic cancer. She was 87.
Supreme Court Justices often try to exist outside of the media spotlight.
But not RBG.
Ruth Bader Ginsburg was much more than just a Supreme Court Justice. To many, she was a pop culture icon and a national treasure. Commonly referred to as the Notorious RBG – a nod to the late rapper the Notorious BIG – Justice Ginsburg has amassed a fandom like no other. On Halloween, parents have even dressed their children in the famous gown and glasses combination that have become so recognisably part of the RBG look.
A self-described ‘flaming feminist litigator’, and one of nine women accepted to Harvard Law School out of a class of five hundred in 1956, Ginsburg dedicated her life to fighting gender discrimination.
In 1971, she inspired an all-male Court to strike down the first ever law on the grounds of gender discrimination. The next year, she co-founded the Women’s Rights Project at the American Civil Liberties Union and as a lawyer for the organisation became one of the nation’s staunchest advocates of gender equality.
In 1993, her legal mastery was rewarded with a place on the US Supreme Court.
On the Court, Ginsburg was a liberal titan, offering biting dissents on the most contentious issues. In 1996, she led the court in striking down the men-only admissions policy at the Virginia Military Institute. A fierce protector of progressive ideals, Ginsburg has repeatedly defended the constitutionality of Obamacare, and sided with the majority in a crucial 5-4 decision to legalise same sex marriage in 2015.
Ginsburg’s progressivism became all the more important after the appointments of conservative justices Neil Gorsuch and Brett Kavanaugh by President trump. Her death leaves a gaping hole on the Court – a hole Republicans are intent on filling before election day.
In 2016, conservative Justice Antonin Scalia died 269 days before the presidential election. Then, Republican Senate Majority Leader Mitch McConnel nefariously blocked Obama’s nomination of Merrick Garland. He argued that, in an election year, the next President should get to appoint a judge. Swathes of Republicans supported this notion, notably Senator Lindsey Graham, who stated:
“If there’s a Republican President in 2016, and a vacancy occurs in the last year of the first term, you can say ‘Lindsay Graham said the next President – whoever it might be – will make that nomination’. You can use my words against me, and you’d be absolutely right”.
Ginsburg has died less than 50 days from the election, and yet Republicans refuse to meet the standard they themselves set. They wish to fill the opening before election day.
The hypocrisy of the situation is almost comic.
President Trump has already begun the process of selecting the next appointee. Having promised to select a woman, it seems the devout Catholic Amy Coney Barret is the favourite to fill Ginsburg’s place.
Admittedly, it is difficult to predict what happens next. In truth, it is unlikely that the President himself nor Mitch McConnel knows. However, if Trump successfully nominates a third Justice, who is then confirmed by the Senate, Democrats will surely seek retribution if they take back the Senate and the Presidency this fall. There are already murmurings among party officials of a push to expand the size of the court if Democrats take back the Senate.
Even if a vote is held, there is no guarantee Republican Senators will confirm Trump’s nominee. Several Republican Senators face tough re-elections, such as Susan Collins of Maine and Lisa Murkowski of Alaska, both of whom oppose appointing a judge before the election. These Senators will face the ultimate challenge of their loyalty to Trump if a vote is brought to the Senate floor. If they side with the President’s nominee, it could be political suicide.
Perhaps the smart move for Trump would be delaying an appointment. Instead, he could release a provisional pick that if he were re-elected, he would install. This political bait could mobilise his supporters to stick with him.
Of course, this is all speculation. But make no mistake, a Republican effort to replace RBG before the election is nothing less than an assault on the apoliticality of the Supreme Court, let alone a display of brazen immorality given Republican actions in 2016.
In the midst of mourning, a political battle has already begun in America. Though small in stature, Ginsburg was a legal colossus, and her loss is truly calamitous for progressives across America. On her deathbed, RBG foresaw the political firestorm that would follow, and wished that her vacancy not be filled until after the election. Whether Ginsburg’s dying wish will be fulfilled is anyone’s guess.
Image: Wake Forest University School of Law via Creative Commons