A nation grieves the loss of a giant among jurists. Supreme Court Justice Ruth Bader Ginsburg was a trailblazer for gender equality and champion of equal justice under the law. Having faced unfair discrimination at the start of her career more than 60 years ago, she forged a path for women to fairly compete in the workplace through groundbreaking case law.
Her compassionate jurisprudence and advocacy of civil rights on the bench as an Appellate Court judge captured the attention of President William Jefferson Clinton, who appointed her to the Supreme Court. Her dissenting opinions about controversial decisions, which she often interpreted as impingements of human rights, cemented her legacy as the “Notorious RBG” and garnered a massive following of admirers.
While the loss of such a beloved public figure has a nation grieving, the political consequences of a her vacancy on the Supreme Court add yet another layer of grief. Since Trump took office, he has appointed two conservative justices, one of which was a seat some consider stolen from Merrick Garland, who was appointed by Barrack Obama eight months before the 2016 election.
In a statement issued yesterday, President Obama said:
Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in. A basic principle of the law — and of everyday fairness — is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment.
GOP Senators refused to confirm President Obama’s pick on the basis that it was too close to the election to confirm a new lifetime justice and that “the voters should have a say in the next Supreme Court Justice.” Despite his own rules, McConnell has announced that he will immediately move forward to confirm another nominee.
GOP Senators who refused to vote for Merrick Garland now face an ethical, if not moral, dilemma and potential political fallout from their constituents in this election year. With Donald Trump losing popularity among moderate republicans, the potential for appointing another conservative to the Supreme Court could solidify their constituents’ loyalty. On the other hand, should they go along with McConnell and confirm a new judge before the end of the year, they’ll forever brand themselves as hypocrites.
But the threat of another Trump appointee on the High Court bench is likely to galvanize Democratic voters, which could pose an even greater threat for vulnerable GOP senators facing tough competitors in this year’s election. Another snarl for the GOP, which could harken their moral high ground, is the potential for democrats to increase the number of jurists seated on the Supreme Court bench to restore balance, provided Democrats can flip the Senate in November.
Recalling McConnell’s insistence that voters should pick the president — and the president should pick the justice for the Senate to consider, Vice President Joe Biden told reporters yesterday,
Let me be clear… This was the position Republicans took in 2016 when there were almost 10 months to go. That’s the position the Senate must take today when the election is only 46 days off.
Some senators, such as Lisa Murkowski and Susan Collins have recently broken with McConnell, stating they would not vote to confirm a new nominee before the election. Others like Ted Cruz, Bob Cornyn and Lindsay Graham have insisted that they would not vote to fill a Supreme Court vacancy during an election year, only to reverse their prior commitment on the grounds that politics “are different now.”
“If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait until the next election,” said Graham in 2018. “And I’ve got a pretty good chance of becoming Chairman of the Judiciary Committee.”
In another such occasion, Graham told reporters, “You can use those words against me.”
Despite their comments, the jury is still out as to whether GOP senators will apply the same principle they applied to Garland in 2016, or fall in line with McConnell. Either way, the stakes couldn’t be higher, according to President Obama.
The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle.The questions before the Court now and in the coming years — with decisions that will determine whether or not our economy is fair, our society is just, women are treated equally, our planet survives, and our democracy endures — are too consequential to future generations for courts to be filled through anything less than an unimpeachable process.
While Justice Ruth Bader Ginsburg vowed to remain at the bench until she could no longer perform her duty to the Court, there’s no doubt she refrained from retirement because she realized the gravity of consequences that would result from her vacancy. Just days before she died, she dictated a statement, which read,
My most fervent wish is that I will not be replaced until a new president is installed.
Ruth Bader Ginsburg, the Notorious RBG, will be sorely missed. May she rest in peace.