She should have died hereafter.
Justice Ruth Bader Ginsburg passed away tonight at the age of 87. I would like to mourn her. But even Ginsburg herself realized there would be no time for that. On her deathbed, she dictated a message that was recorded by her granddaughter: “My most fervent wish is that I will not be replaced until a new president is installed.” Even near her end, Justice Ginsburg was citing precedent. Here, she was specifically invoking the precedent set by Senate majority leader Mitch McConnell when he decided to hold open a seat on the Supreme Court vacated after the death of Justice Antonin Scalia (who died in February of 2016) until after the election that November and the inauguration of a new president in 2017.
McConnell has already indicated that he doesn’t care about that precedent. Within hours of Ginsburg’s death, he told The Washington Post that Trump’s nominee to replace Ginsburg will receive a full vote on the Senate floor. McConnell will use all his considerable power to confirm a new Supreme Court justice in record time: either before the election, if he thinks he can get away with it, or during the lame duck session after the election, should Republicans lose either the Senate or the White House.
Ginsburg herself surely knew this. Her deathbed dictation should not be read as the fleeting hope bubbles of a dying old lady, but as an exhortation to fight from the fiercest defender of women’s rights of her generation. This was her dying dissent: a message not about what Trump and McConnell should do, but about what we must do. We must not let her be “replaced” until a new president is installed.
The prospects for near-term success are grim. McConnell has already removed the filibuster rule for Supreme Court appointments, which means he needs only 50 votes to confirm a new justice (since the vice president breaks any ties), and he has 53 Republicans. Democrats would have to convince four of those Republicans to agree to wait until after the election to move on a nominee. Even if political pressure can be brought against Republicans in close Senate races to reject McConnell’s hypocrisy, Democrats would have to keep those Republicans on board, against McConnell, through the transition to the next presidential term. It’s entirely possible that some of those vulnerable Republicans will lose their election campaigns anyway, and thus have no real reason to stick with Democrats before the inauguration, instead of voting with their party as they transition to their post-electoral careers in Republican politics.
There are rumors flying tonight that some Republican senators might be amenable to delaying the nomination until 2021. But McConnell hasn’t put the screws to them yet. Remember, initially it seemed very unlikely that McConnell would be able to indefinitely hold open the Scalia seat, but he did.
It’s not hard to see how McConnell will control his caucus. Remember, while some Republicans will occasionally furrow their brows in performative outrage at the latest Trump tweets, almost all of these people are in favor of the hardcore conservative legal policies Ginsburg spent her life opposing. Republican senators might not like Trump’s handling of the coronavirus, but they love taking health care away from millions of people; they love the deregulation that leads to environmental destruction; and they consider it a moral imperative to reduce a pregnant woman to the legal status of a medical incubator with a mouth hole they can ignore.
When faced with a Supreme Court vacancy 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 anticipate McConnell’s unprecedented maneuver to block his nominee or thought that Garland’s moderate stances would cause other Republicans to resist McConnell’s gambit to block him.
We can expect Trump to go in the completely opposite direction. Instead of nominating a moderate Republican jurist, we can expect him to drag out a fire-breathing archconservative who has already taken fringe stances on abortion rights and the right to bear shoulder-launched grenades. I have long believed that the Republicans would prefer the ruling that ends the right to an abortion to come from a woman, and so I believe religious conservative Amy Coney Barrett or absolute wing nut Neomi Rao to be the most likely Trump nominees. Both are extremists who would be put forward not to get moderate buy in, but simply to excite the base and “spike the football” on Ginsburg’s legal legacy.
And they’re both young. Barrett is 48 years old, Rao 47. Another potential nominee, according to sources speaking to The Washington Post’s Robert Costa, is Allison Jones Rushing, who is only 38. The nominee McConnell tries to push through over the next few months will likely wield power in this country for the next 30 to 40 years.
It would now seem like the list of potential Supreme Court nominees Trump produced last week was released with some kind of inside information about Ginsburg’s failing health. I hope Biden is ready to meet Trump’s nominee with his own suggestion. People should be able to see the choice Biden would put up, and compare her to whoever Trump thinks is fit to sit in Ginsburg’s chair. That’s a fight I very much think Democrats would win.
If the Democrats are unable to block Trump’s nominee, there is but one choice should Joe Biden win the White House and the Democrats take back a majority in the Senate: pack the Supreme Court. As I’ve written before, the number of Supreme Court justices is set by legislation, not the Constitution. If McConnell can successfully block one Supreme Court appointment because a Republican justice died under a Democratic president but rush through a second nominee because a Democratic justice died under a Republican president, then McConnell has proven that the composition of the Supreme Court is a function of raw political power.
Should Democrats ever hold that power again, they must act. The addition of two justices is simply a proportional response necessary to right the wrongs committed by McConnell. The addition of 10 justices, as I have advocated, puts the Supreme Court on a path toward long-term reform.
This must be our fight now. We must do everything we can to stop McConnell from filling Ginsburg’s seat and, however that turns out, we must retake political power and reform a Supreme Court that has been irrevocably broken by McConnell’s ongoing hypocrisy.
That fight seems daunting, but it is no more difficult than the battles Ginsburg herself fought and won over the course of her storied career. When Ginsburg started, the court did not include women in the due process protections given by the 14th Amendment. Ginsburg changed that. When she started, laws that discriminated against women were not subjected to a heightened level of judicial review. Ginsburg changed that. As a lawyer, Ginsburg took cases representing men to win gains for women’s rights, and as a justice she refused to act like her gender was irrelevant when understanding the issues that came across her desk. Every day of her career was an uphill battle, and she won many of them.
Ginsburg must not be “replaced” by a conservative whose only goal is to roll back the advancements she achieved. McConnell might fill her temporarily vacated seat, but her legacy must be defended with the elevation of additional justices committed to continuing her work.
I’ve found, over the course of my life, that most people don’t appreciate the value of a dissent. They say that the justice who writes a dissent has lost the battle. They lament that the justice’s arguments have no binding legal effect. Why, they ask, do these justices write, often so passionately, about a decision that already went against them?
Nobody has ever explained the value of a dissent better than Ginsburg herself. She said: “Dissents speak to a future age. It’s not simply to say, ‘My colleagues are wrong and I would do it this way.’ But the greatest dissents do become court opinions and gradually over time their views become the dominant view. So that’s the dissenter’s hope: that they are writing not for today, but for tomorrow.”
We will fight as hard as we can today. We must dissent with all our might, And, if we’re lucky, our “future age” can and must start on January 20, 2021. That age must include additional warriors, ready to storm the Supreme Court and cleanse it of its McConnell-induced illegitimacy.