Elizabeth Olsson | 19 September 2020
Ruth Bader Ginsburg (RBG) died of cancer on Friday. She was 87. Appointed in 1993, she was the second woman to serve on the U.S. Supreme Court. During her decades-long tenure, she took on a superstar status as a cultural icon and champcion of progressive issues. Her death is tragic, but it also complicates a bitterly contested election.
When a Supreme Court Justice either dies or resigns, it is the President’s job to appoint her replacement and the Senate's job to either confirm or reject that appointment. In a similar turn of events in March 2016, then-President Obama nominated Merrick Garland to fill the vacancy left by the death of Antonin Scalia. In a historically unprecedented move, the Republican-dominated Senate refused to consider the nomination, claiming that the next president should appoint a replacement. The seat was left vacate; Trump was elected and his appointment, Neil Gorsuch, was confirmed by the Senate on April 7, 2017. Gorsuch’s appointment coupled with the appointment of Brett Kavanaugh— who was confirmed despite multiple accusations of sexual assault and an inappropriate relationship with Trump— ensured a conservative majority.
Ever conscious of the political moment, Senate Majority Leader, Mitch McConnell, gave the following statement just hours after the Supreme Court announced RBG’s death: “President Trump’s nominee will receive a vote on the floor of the United States Senate.” With a mere seven weeks before the election on November 3, 2020, that is a provocative statement.
Obama weighed in the significance of McConnell’s assertion in his “Statement on the Passing of Justice Ruth Bader Ginsburg.” After commending Justice Ginsburg on an extraordinary career, Obama turned his attention to the Senate, many of whom also served in 2016, stating,
“Four and a half years ago, when Republicans refused to a hearing (…) 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, not based on what’s convenient or advantageous in the moment.”
Obama concluded his statement by reminding Senate Republicans that their actions would have affect the future of U.S. democracy, calling on them to ensure that the RBG’s seat is filled in “an unimpeachable process” by whomever is elected in November.
Obama’s words may sound hyperbolic, but, if anything, they are an understatement. This is because the Supreme Court is one of three branches in the U.S. federal government, making its composition every bit as important as who is in the White House and who is on Capitol Hill. One of the biggest and most important differences between the Supreme Court and the other two branches is that appointees serve for life, and many in recent years have sat on the Supreme Court for decades. As noted above, the court currently enjoys a ‘conservative majority,’” and, with an open seat among nine justices— currently consisting of 1 Bush Sr. appointment, 2 Bush Jr. appointments, 1 Clinton appointment, 2 Obama appointments, and 2 Trump appointments— the next justice will either solidify that majority or challenge it for many years to come.
Over the weekend, Joe Biden, the Democratic nominee for president, echoed Obama’s sentiments as he appealed directly to Republican Senators. “Don’t go there. Uphold your constitutional duty, your conscience, let the people speak. Cool the flames that have been engulfing our country. We can’t keep rewriting history.”
RBG would agree. As we wade through the partisan politics surrounding her replacement, let us not forget the tremendous contributions RBG made on the Supreme Court. RBG is, was, and shall forever be a superstar because she was a fierce and indomitable advocate for gender equality, abortion rights, and international law. She fought for “real change, enduring change” in the only way it is accomplished, “one step at a time.” Whether she found herself authoring a majority or minority opinion, she knew that her words had profound significance. As she commented in an interview with Nina Totenberg on National Public Radio,
“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 views. So that’s the dissenter’s hope: that they are writing not for today, but for tomorrow.”
“When I’m sometimes asked, ‘When will there be enough (women on the Supreme Court)?’ and I say ‘When there are nine,’ people are shocked. But there’s been nine men, and nobody’s ever raised a question about that.”
To put her statement into historical perspective, the Supreme Court was founded 231 years ago in 1789. The first woman joined the court in 1981, ending more than 192 years of exclusively male justices. During her time on the court, RBG served with three other women, including Sandra Day O’Connor, the first women on the court and a Reagan appointee, as well as Sonia Sotomayor and Elena Kagan, both appointed by Obama. Since RBG took her seat on August 10, 1993, woman have remained a minority on the court and only three woman have ever severed simultaneously. With RBG’s death, there are now two.
If Justice Ginsburg is replaced by a Trump nominee, that nominee will inevitably help dismantle her legacy. The impending fight over who will replace RBG and, more importantly, who will nominate her replacement, is shaping up to be not only the biggest issue in this campaign but one with the longest-lasting consequences.
RBG appreciated the significance of her passing, telling her granddaughter just days ago, “My most fervent wish is that I will not be replaced until a new president is installed.” The question now is: Will Trump and Senate Republicans honor that wish and the precedent they set in 2016, or will the situation devolve into a partisan battle in a year of devastating political cleavages?
Keywords: #election2020, #presidentialpolitics, #RBG, #RuthBaderGinsburg, #SupremeCourt, #Senate, #Republicans, #MerrickGarland, #dyingwish, #Trump, #MitchMcConnell, #liberalvoters, #culturalicon, #thefutureofUSdemocracy
Elizabeth Olsson is a Ph.D. student at SGS. She was born and raised in the United States and studied U.S. politics at the University of California, Berkeley, from 1998-2002. She relocated to Sweden permanently in 2007.