Ruth Bader Ginsburg died this past Friday, September 18th, and my stomach hurts. I wanted to wait a few days to let things soak in before I commented, although I’ve mostly tried (unsuccessfully) to avoid thinking about it. The New York Times called her “the Supreme Court’s feminist icon”, but I think that minimizes her legacy. In addition to tirelessly advocating for the rights of women, she was also a champion of the working class and racial minorities.
As expected, President Trump and the Republican-controlled Senate are pushing for a quick replacement. The irony here is obvious, but I’ll state it anyway. In February 2016, nine months before the 2016 election, conservative Supreme Court Justice Antonin Scalia died and then-president Barack Obama nominated Merrick Garland to replace him. However, the Republican-controlled Senate refused to begin the confirmation process and the court was left with eight justices until 2016 election winner Donald Trump nominated Neil Gorsuch, who easily passed through the Senate confirmation hearings.
This was blatant politicking- the Republicans were hoping for a Trump victory over Hillary Clinton, so that a Republican president would nominate a more conservative jurist. The Democrats cried foul, and it was. Many Republicans justified their position by referring to the “Biden Rule”, based on hypothetical comments made by Joe Biden 1992, even though it was never actually applied, nor was it even an authentic rule.
And now, devoid of embarrassment and delighting in their own hypocrisy, many of the same Republicans are calling for a quick confirmation process, just six weeks before the election. Trump urged the Senate to consider his upcoming nominee “without delay”, and Senate majority leader Mitch McConnell vowed to call for a vote on the nominee. Lindsey Graham, the Senate Judiciary Committee Chairperson, promised to support Trump in any effort to replace Ginsburg.
However, as recently as 2018, the same Lindsey Graham stated: "If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election”. Hmmmm …. And after Barack Obama nominated Merrick Garland, that same Mitch McConnell stated “The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president”. Insert perplexed emoji here…
My guess is the Republicans will be successful. Trump will nominate a very conservative judge and the Senate will move quickly to confirm her or him as soon as they possibly can. There are, of course, one or two scenarios that could derail this. Most plausibly, a few Republican senators, either because they have a conscience, or because they are in tight re-election campaigns, might not support moving so quickly. But I don’t think I’ll hold my breath.
Howard Zinn, however, gives me some solace. Years ago, Zinn opined that we should not put too much hope in the Supreme Court to be a progressive force. Justices, judges and politicians often exalt the constitution and “rule of law”, but “law” and “justice” are not the same. Laws are often unjust, and it usually takes a social movement from the people to draw attention to the injustice and force it’s repairment. The words outside the Supreme Court, "Equal Justice Before the Law", have always been more aspirational than applicable.
This is not to say that the composition of the Supreme Court, or any court for that matter, is immaterial. Certain individuals on the bench are more likely to support progressive policies than others. But too much hand-wringing about the direction of the court might be misplaced. The same applies to voting- it is but one strategy to bring about change, certainly not the only one. Depending on the courts and the political system to dismantle structural inequality overlooks the power individual actors have in a democracy through organizing and engaging in civil unrest.
At the end of the day, I am saddened by the passing of Justice Ginsburg, and I hope she is replaced by someone who at least approximates her intelligence and social conscience. But I choose not to panic. Instead, I’ll conclude with a quote from Zinn:
Let us not be disconsolate over the increasing control of the court system by the right wing. The courts have never been on the side of justice, only moving a few degrees one way or the other, unless pushed by the people… No Supreme Court, liberal or conservative, will stop the war in Iraq, or redistribute the wealth of this country, or establish free medical care for every human being. Such fundamental change will depend, the experience of the past suggests, on the actions of an aroused citizenry, demanding that the promise of the Declaration of Independence--an equal right to life, liberty, and the pursuit of happiness--be fulfilled.