Justice Ruth Bader Ginsburg swore an oath to defend the Constitution when she joined the United States Supreme Court in August of 1993. With true faith and allegiance to that oath, she made it clear in the last years of her remarkable tenure that she did not want Donald Trump to choose her successor. Before the president was elected, Justice Ginsburg said, “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president. For the country, it could be four years. For the court, it could be—I don’t even want to contemplate that.”
The senior liberal on a delicately balanced high court—where she had served as a courageous and consistent champion of women’s rights, civil rights, and voting rights—spoke those words in July of 2016.
For four long years, Justice Ginsburg kept the faith—battling cancer and advancing years. Just days before her death Friday, at age 87, the justice dictated a statement to her granddaughter Clara Spera that read: “My most fervent wish is that I will not be replaced until a new president is installed.”
That was not her wish alone. Tens of millions shared it. Now, however, the dread prospect is upon us.
Thousands gathered outside the Supreme Court building on Rosh Hashanah to mourn. They recognized immediately that we must honor Justice Ginsburg’s service—not merely because, as Chief Justice John Roberts said Friday evening, “our Nation has lost a jurist of historic stature,” but because of this remarkable woman’s epic role in advancing the cause of gender equity. “Justice Ginsburg was a trailblazer, the second woman to serve on the Supreme Court, the first Jewish woman, and a voice for all Americans, not just the wealthy and powerful,” said Alliance for Justice president Nan Aron. “Justice Ginsburg blazed trails on her way to greatness, authoring and joining opinions that advanced women’s equality, LGBTQ rights, reproductive freedoms, and so many other protections so many hold dear.”
“She was a giant, and we shall not see her likes again,” said American Constitution Society President Russ Feingold, a former member of the Senate Judiciary Committee, who observed that “by means of her towering intellect and unflinching courage, she blazed a path toward a better life for American women, and all Americans.”
This is a time to grieve, and to reflect.
Yet Justice Ginsburg has died in a presidential election year—just 46 days before Donald Trump will face his day of reckoning with the voters.
It does not disrespect the justice’s memory to speak in this moment of honoring the Notorious RBG’s most fervent wish.
But keeping that faith will not be easy.
This president is determined to nominate someone to replace Justice Ginsburg. “He really has an ego,” she said of Trump back in 2016, and it is unimaginable that this man’s ego would allow him to respect the wishes of the woman whose seat on the high court is now vacant. Most likely, Trump will move quickly. Most likely, he will nominate Judge Amy Coney Barrett, whom the president placed on the US Court of Appeals for the Seventh Circuit.
But this is not Trump’s choice alone.
Trump’s nominee must be approved by the full Senate.
It is true that the Senate is controlled 53-47 by the president’s party. It is also true that Senate majority leader Mitch McConnell’s great ambition is to transform the courts into vehicles for socially right-wing and pro-corporate judicial activism. He will not blink now.
Of course, McConnell blocked President Obama’s 2016 nomination of Judge Merrick Garland to serve on the Supreme Court because he claimed the work of filling conservative Justice Antonin Scalia’s vacant seat on the bench should not be done in an election year. Now, McConnell peddles a tortured claim that 2020 is a different election year. It is not. However, McConnell is a willing hypocrite. On Friday night, he declared, “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
That is his goal. Yet McConnell faces structural and political hurdles. What happens in the Senate will not be his choice alone. As PBS NewsHour correspondent Lisa Desjardins has reminded us, “the fastest Supreme Court confirmation in the past 30 years took 42 days. That was for Justice Ginsburg, in 1993. The average confirmation, since 1975, takes 67 days.” If Senate Democrats are united and strategic in their application of Senate rules—including demands for unanimous consent—it will be virtually impossible for a nomination to be vetted, considered by the Senate Judiciary Committee, and debated and voted upon by the full Senate in the six weeks before November 3. And it may not be possible after that.
Why? If four Republicans refuse to go along with him, McConnell won’t be able to place another Trump nominee on the high court. Senators Lisa Murkowski of Alaska and Susan Collins of Maine had already signaled before Justice Ginsburg’s death that they were not inclined to join McConnell in a rush to judgement. Perhaps Utah Republican Mitt Romney and another GOP senator such as retiring Senator Lamar Alexander of Tennessee might join the resistance.
What could cause Republican senators to say “no” to McConnell?
The death of Justice Ginsburg has changed everything about the 2020 election. This election will see a debate about the judiciary like none the United States has ever experienced. The signal that is sent by the electorate will matter more than it ever has.
A new Senate might, after January 3, take up the transformational work of abolishing the filibuster and expanding the high court to address the abuses of the McConnell interregnum. But the vital work comes immediately—in the weeks before and after November 3.
If the president is reelected, and if Republicans maintain control of the Senate, Trump and McConnell will seize the opportunity to transform the court. Have no doubt about that that.
If Joe Biden is elected president, and if Democrats take control of the Senate, however, Trump and McConnell will be delegitimized. And it might just be possible to convince a few Republicans to respect Justice Ginsburg’s fervent wish.