Supreme Court Justice Ruth Bader Ginsburg died on Friday, September 18, due to complications from pancreatic cancer. The “Notorious RBG,” as she was fondly called by fans and admirers, will go down in history as a fierce advocate of women’s rights, a powerful legal mind, and a consummate public servant. But, as politics is wont to do in this day and age, the battle to fill the Supreme Court vacancy is already heating up.
To our beloved readers on both sides of the political aisle, as well to our elected leaders of both parties, we urge you to do the right thing: do not fill Ruther Bader Ginsburg’s seat until after the 2020 Presidential Election. We urge you to put country over party. We remind you of Micah (6:8): “What does the Lord require of you? To act justly.” And we challenge you to live up to the dream of Martin Luther King Jr., when he said: “Cowardice asks the question, ‘Is it safe?’ Expediency asks the question, ‘Is it politic?’ Vanity asks the question, ‘Is it popular?’ But conscience asks the question, ‘Is it right?’” We ask our fellow citizens and representatives to do the right thing.
Remembering Ruth Bader Ginsburg
It is a tragedy of our political system and media today that, as soon as Ruth Bader Ginsburg died, speculation began regarding the political implications of the event. Admittedly, we here at DWF are guilty of this same crime. But we ought to pause, at the very least, and remember the life that Ruth Bader Ginsburg lived.
Ruth Bader Ginsburg was born in Brooklyn, New York to parents who were Jewish immigrants. She initially attended Harvard Law School as one of nine women in a class of 500 men where the Dean of the Law School asked her, “Why are you at Harvard Law School taking the place of a man?” Ruth Bader Ginsburg didn’t have time for his blatant misogyny while taking care of her 3-year old child, attending to her husband’s testicular cancer, and working for the Harvard Law Review. She eventually graduated from Columbia Law School to work in academia, co-found the Women’s Rights Project at the American Civil Liberties Union, and receive a Presidential nomination to the US Court of Appeals for the District of Columbia, where she served for 13 years.
Ruth Bader Ginsburg would eventually be nominated to the US Supreme Court by President Bill Clinton. She was confirmed by the United States Senate by a 96-3 vote as the second women to serve on the High Court. Ruth Bader Ginsburg would serve on the Supreme Court for 27 years, authoring decisions and dissents on gender discrimination, abortion rights and privacy. Outside of the courtroom, Ruther Bader Ginsberg, a staunch liberal, was “best buddies” with conservative Justice Antonin Scalia. Scalia and Ginsburg, both native New Yorkers, shared a love of opera and even spent New Year’s Eve together. When Ruth Bader Ginsberg’s husband Marty died in 2010, Scalia cried in the Court room at the announcement. Justice Ginsberg dedicated her life to this country and to the law.
The Choice to Replace Ruth Bader Ginsberg
On the evening that Ruth Bader Ginsberg died, Senate Majority Leader Mitch McConnell announced that “President Trump’s nominee will receive a vote on the floor of the United States Senate.” McConnell’s announcement flies in the face of the very precedent that he created after conservative Justice Antonin Scalia died. In March, 2016, one month after Scalia passed away, President Barack Obama nominated US Circuit Court Judge Merrick Garland to fill the opening. McConnell infamously refused even to give Garland a hearing in the Judiciary Committee, despite Garland’s undisputed qualifications and the occurrence of the nomination occurring 10 months before a new President would take office. This new precedent, that the Senate should not confirm a SCOTUS nominee in an election year, has come to be known as the “McConnell Rule.”
Today, just 45 days until the next Presidential election, the “McConnell Rule” no longer seems to apply according to Mitch McConnell himself. McConnell is attempting to split the difference, arguing that, in 2014, the Republican Senate Majority was elected to check the power of a Democratic President and that they should not allow him a Supreme Court appointment in the “last days of a lame-duck” term. Now, completely inconsistently, McConnell seems to believe that the midterm elections, where a “blue wave” of Americans voted to swing the House of Representatives to Democrats in 2018 to put a check on President Trump’s power, do not take precedence. McConnell apparently does not care that 2020 is an election year and no longer believes that we should “let the American people decide.” McConnell intends to replace RBG before the November election.
The McConnell Rule only applies when it is politically convenient, evidently. Its unabashed hypocrisy is unbecoming of Congress. The American people expect better than this. It violates every notion of fairness, justice, and equality. It is not the government we deserve, but apparently it is going to be the government we get.
Consolidating the Center
If the United States Senate were to vote along party lines on Ruth Bader Ginsburg’s replacement, President Donald Trump’s nominee would be approved with 53 votes from Republicans against 47 votes from Democrats and Independents. Tragically, contrary to the original vision of the Senate as the Great Deliberative Body, where our country’s most enlightened and measured leaders negotiate on behalf of our collective best interests, only a simple majority (i.e. 51 votes) is currently required to confirm a Supreme Court Justice. This travesty is the unfortunate result of tit-for-tat invocation of the “Nuclear Option” between Republicans and Democrats over the past two presidencies.
Without the filibuster, Democrats would need four Republicans to vote “no” on Trump’s nominee. Here we go again, it seems. It feels reminiscent of impeachment hearings. Will four Republicans vote for what is right as opposed to what is easy? Will four Republicans help hold our country together as opposed to actively tearing it apart? One of the most likely candidates once again appears to be Senator Susan Collins of Maine. Collins had previously said that she would not favor voting on a new Supreme Court Justice ahead of the November election and that October is “too close.” Collins has since come out against voting to replace RBG until after the November election.
On the very same day of Ruth Bader Ginsburg’s passing, Senator Lisa Murkowski of Alaska said that she would not vote to replace Ginsburg before the election, stating “fair is fair”. On Sunday, September 20, Murkowski again came out against confirming a new Supreme Court Justice prior to the Presidential Election. A third potential vote against a Trump nominee would be Senator Mitt Romney of Utah, a moderate institutionalist with a track record of independent thinking, including being the only Senator to break party lines in the impeachment trial of Donald Trump. However, Romney came out in favor of replacing Ginsburg on Tuesday, September 22.
If we assume two of these three Senators oppose Trump’s nominee, the vote would be 51-49 in the United States Senate. The smallest margin for confirmation of a Supreme Court Justice since 1930. An unfortunate result for the legitimacy and nonpartisanship of our nation’s highest court.
Profiles in Courage
In 1956, while recovering from back surgery, Senator John F. Kennedy wrote “Profiles in Courage,” highlighting eight United States Senators who bucked party lines to stand up, not for what is safe, popular, or politic, but for what is right. The book should be assigned reading for all members of Congress. Now, with the passing of Ruth Bader Ginsburg, our country once again looks for one or more Senators to rise to the occasion and write their name into the sequel of “Profiles in Courage.”
There is no clear favorite, but a few contenders. Senator Lindsey Graham, Chairman of the Senate Judiciary Committee and a staunch Trump ally as of late, might honor the memory of his dear friend John McCain, who famously broke party lines to cast the deciding vote to preserve Barack Obama’s Affordable Care Act. In October 2018, Graham told The Atlantic, “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.” When asked to confirm the statement, he replied, “Hold the tape.” Unfortunately, Graham already appears to have committed to supporting Trump’s nominee. In July, Senator Chuck Grassley, former Chairman of the Senate Judiciary Committee, said he would not recommend holding a hearing for a Trump nominee before the election. He even said that he would tell current Chairman Lindsey Graham to do the same. Grassley has since stated that he will vote on Trump’s nominee.
As far as the rest, some speculate that retiring Senator Lamar Alexander of Tennessee could be a potential wild card. Alexander is a close ally of Mitch McConnell, but he is known to be a guardian of the Senate’s traditions as an “institutionalist.” On Sunday, September 20, Alexander released a statement that he would support filling RBG’s seat before the election. Some might wonder about other retiring Senators such as Pat Roberts of Kansas, Johnny Isakson of Georgia, and Mike Enzi of Wyoming, although they are more consistent conservatives representing very red states. Perhaps some Republican Senators fighting close reelection campaigns—Thom Tillis of North Carolina, Joni Ernst of Iowa, and Cory Gardner of Colorado—might consider breaking party lines in the hopes of winning over moderates and independents in their states. However, they appear unwilling to estrange their Republican base and have indicated that they will vote on Trump’s nominee. Some even speculate that Democratic candidate for Arizona Senate, Mark Kelly, could be seated in the Senate as soon as November 2020 if he wins, as his election is technically a special election according to some election attorneys, and could thus vote against a Trump nominee at that time.
The list isn’t especially long and doesn’t seem particularly likely to yield results. But perhaps someone in the Upper House might hear their country calling. They might chose to put country over party and follow the McConnell Rule so that the American people can decide how to replace Justice Ginsberg in 45 short days from now. Perhaps someone will remember Andrew Jackson’s wisdom that, “one man with courage makes a majority.”
Do the Right Thing
The coming weeks and months will be a test for the American experiment. The legitimacy of our Courts and our entire legal system may be called into question. Our institutions, already strained, will be put under more pressure. Our country, already divided, will become even more so.
If Mitch McConnell and Republicans jam through a Trump nominee, it would only continue the dire cycle of tit-for-tat brinksmanship and the erosion our of governmental norms. If Republicans appoint a conservative Supreme Court Justice prior to the election but Democrats win the Presidency and Senate in November, what would stop the Democrats from packing the Court? Having stolen one or even two Supreme Court Seats in the eyes of many Democrats, the Republicans would have no response. Will all future Supreme Court nominees be partisan blood baths? What would stop Democrats from adding Washington DC and Puerto Rico as the 51st and 52nd states, adding four additional Democratic seats to the Senate to ensure the success of future Supreme Court picks? For those of us who care about this country, and particularly for those who serve in uniform to defend it and what it stands for, these are frightening and saddening thoughts.
These are difficult times and more difficult times lie ahead. So, what are we to do? We must stand up and speak out. We must call on our elected representatives to listen to the people. We must remember that compromise is the oxygen of democracy, as Jon Meachum said, and that we need to come up for air. We must heed Abraham Lincoln’s warning that, “If destruction be our lot, we must ourselves be its author and finisher.”
In the Talmud, the Rabbinic commentary on the Torah and the primary source of Jewish halakha (religious law), there is a wonderful passage that might be able to provide some wisdom. It states: “Rabban Shimon Ben Gamliel said, ‘The world is sustained by three things, by justice, by truth and by peace.’ Rav Muna replied: ‘These three things are actually one. For when justice is done, truth is served and peace is achieved.’” Let us say a prayer for our country. A prayer for peace and for truth. And a prayer for justice.
Editors Note: This story is rapidly evolving and Divided We Fall is updating this article in real-time.
Divided We Fall is committed to providing a platform for all political perspectives, even and especially those with which we disagree. Robert Wilkes has provided the following response titled, “Filling the Seat is the Right Thing to Do.”
Dear Joe: Your op-ed is an impassioned plea for statesmanship over partisanship. You call on Congress to heed John F. Kennedy’s credo from “Profiles in Courage” and to “…stand up for, not what is safe, popular or politic, but for what is right.” I like that. Unfortunately, your application of that noble sentiment is misplaced. Your op-ed is hypocritical and wrong.
Why It’s Hypocritical
You admonish the Republicans for partisanship regarding Supreme Court nominees. But you picked the wrong party. The partisanship is on the left. Ruth Bader Ginsberg was confirmed 96-3, with only three Republicans opposed her. That is because she met the only test that matters: she was qualified. Let’s contrast that behavior, true to the founder’s vision of an impartial judiciary, to the behavior of the Democratic Party.
Democrats for decades have viewed the court as a path to achieving legislative goals they could not get voters to approve through the ballot. That began with FDR, who tried to pack the court with 15 justices through his Judicial Procedures Reform Bill of 1937. The bill would have allowed him to appoint six additional liberal judges and make a mockery of our third branch of government.
As the court moved from the liberal-leaning William O. Douglass era of judicial activism to a more originalist philosophy, the Democrats, unable to reverse the trend, unleashed the dogs of war. Perhaps the most qualified jurist ever to be nominated was Robert Bork in 1987. The deceitful tactics used to defeat his nomination are now a verb: “borking.” He was rejected solely because he was a Constitutional conservative.
Not long after that we had the disgusting and disgraceful “high-tech lynching” of a truly good man, Clarence Thomas. Thomas is, in the opinion of many who follow the Supreme Court, one of our nation’s greatest Supreme Court justices. Thus began the tactic of disgracing a Supreme Court nominee by invented slanderous sexual innuendo. The intention was not only to defeat the nominee, but to ruin him for the rest of his life. It sent a strong message to any conservative judge: Don’t even try to be on the Supreme Court. We will destroy you.
This hyper-partisan tactic of personal destruction reached a crescendo during the Kavanaugh hearing. Some on the partisan left still “believe the woman” on a reflexive, irrational basis that blows to hell our system of innocent until proven guilty. Let’s put it to rest. The FBI could not corroborate a single detail of any of the accusations against Kavanaugh.
What the McConnell Rule Actual Says
Schuman simply doesn’t know the McConnell Rule. Here is what McConnell said on the Senate floor on February 23, 2016:
“It has been more than 80 years since a Supreme Court vacancy arose and was filled in a Presidential election year, and that was when the Senate majority and the President were from the same political party.”
“Since we have divided government today, it means we have to look back almost 130 years to the last time a nominee was confirmed in similar circumstances.”
The McConnell Rule is the correct reading of historical precedent. Out of 29 similar events, 27 followed the rule. And the path to seating a Supreme Court justice is clear. The Constitution states in Article 2 Section 2: He [the President] shall have Power…with the Advice and Consent of the Senate, [to] appoint…Judges to the supreme court. When President Trump nominates a judge and the Senate confirms, he will not be engaged in an act of raw political power, he will be fulfilling his Constitutional duty. The McConnell Rule will not be contradicted.
A Plea for Kennedy-Inspired Statesmanship
President Trump will nominate a woman. Measure her by her merits and her qualifications. Do not attempt destroy another fine public servant aspiring to be a judge on the Supreme Court. The public has had it with these foul Democratic tactics, and they will remember in November.