Farewell To Justice Ruth Bader Ginsburg, A Feminist Icon & Fierce Defender Of Civil Rights And Equal Protection
September 21, 2020
FOREVER NOTORIOUS
|On Friday, JUSTICE RUTH BADER GINSBURG died at the age of 87. A statement from the Supreme Court noted she died surrounded by family in her Washington D.C. home. The second woman to serve on the high court, RBG served for more than 27 years. CHIEF JUSTICE JOHN ROBERTS said in a statement: “Our Nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague. Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her — a tireless and resolute champion of justice.”
A DEMURE FIREBRAND
|NPR’s Nina Totenberg says that JUSTICE GINSBURG was a “demure firebrand who in her 80s became a legal, cultural and feminist icon.” Totenberg reflects on the life and legacy of Ginsburg, explaining how she “changed the way the world is for American women” despite being “an unlikely pioneer.” PRESIDENT BILL CLINTON nominated Ginsburg to the Supreme Court in 1993, after Clinton “fell for her — hook, line and sinker.” The Senate would similarly fall for RBG, confirming her SCOTUS nomination by a 96-3 vote. Totenberg writes, “Once on the court, Ginsburg was an example of a woman who defied stereotypes. Though she looked tiny and frail, she rode horses well into her 70s and even went parasailing. At home, it was her husband who was the chef, indeed a master chef, while the justice cheerfully acknowledged she was an awful cook.” And to the end of her tenure, Totenberg points out, Justice Ginsburg was “a special kind of feminist, both decorous and dogged.”
YOU'VE GOT A FRIEND IN ME
|It’s worth noting that Nina Totenberg with NPR had a friendship with JUSTICE RUTH BADER GINSBURG that spanned five decades. It all started with a phone call. In 1971, Totenberg was newly assigned to cover SCOTUS and she called Ginsburg who was a law professor at the time to get some information on a case. From there, the two became professional friends and later in life become close personal friends. With RBG’s passing, Totenberg shares stories of her dear friend — stories Totenberg refers to as examples of the justice’s “extraordinary character, decency and commitment to friends, colleagues, law clerks.” From these stories, we learn that RBG loved her wine, loved her food, and loved her husband. Totenberg writes, “Confined to one glass a day, she rebelled when my husband, David, brought her a giant glass filled halfway up at break-fast on Yom Kippur. ‘David,’ she instructed, ‘fill it up to the top.'” And the only time Totenberg ever saw the justice cry was when she read a letter from her late husband, Marty.
A FASHION ICON
|Linda Greenhouse with The New York Times chronicles JUSTICE GINSBURG’S life and notes that her dissents usually received far more attention than her opinions — especially those she announced from the bench. “Playing along with her crowd, she took to switching the decorative collars she wore with her judicial robe on days when she would be announcing a dissent. She even wore her ‘dissenting collar,’ which one observer described as ‘resembling a piece of medieval armor,’ the day after MR. TRUMP’S election.” Greenhouse also explores how RBG shifted between her personal and professional life. “Although on the bench she was an active and persistent questioner, in social settings she tended to say little…It was not so much that there were two sides to her personality, as it might have appeared, as that her innate shyness simply disappeared when she had a job to do. She once recalled that before her first Supreme Court argument, she was so nervous that she did not eat lunch ‘for fear I might throw up.’ But about two minutes into the argument, ‘the fear dissolved,’ she said. She realized that she had a ‘captive audience’ of the most powerful judges in America, and ‘I felt a surge of power that carried me through.'”
IT WAS ALL A DREAM
|“Born in Depression-era Brooklyn, JUSTICE GINSBURG excelled academically and went to the top of her law school class at a time when women were still called upon to justify taking a man’s place. She earned a reputation as the legal embodiment of the women’s liberation movement and as a widely admired role model for generations of female lawyers.” Robert Barnes with The Washington Post explains that when she became known as the Notorious RBG, her law clerks had to explain to her that the moniker referred to the Notorious BIG, the famous rapper and a fellow Brooklynite. And Barnes notes that even before coming to SCOTUS she made an outsized impact in the legal world, successfully arguing a series of cases before the Supreme Court that “strategically chipped away at the legal wall of gender discrimination.” Her colleague and friend, JUSTICE ANTONIN SCALIA wrote in 2015 of her dual careers as an advocate and a judge when she was named Time magazine’s 100 most influential people: “Ruth Bader Ginsburg has had two distinguished legal careers, either one of which would alone entitle her to be one of Time’s 100.”
SOMETIMES YOUR WORDS JUST HYPNOTIZE ME
|Once on the Supreme Court, she continued to be a fierce defender of civil rights and equal protection. Joan Biskupic and Ariane de Vogue with CNN suggest she was best known for the opinion she wrote in United States v. Virginia, a decision that held that the all-male admissions policy at the state-funded Virginia Military Institute was unconstitutional for its ban on women applicants. They also note that she was the leader of the court’s liberals as they voted in favor of same-sex marriage in 2015, and in 2013 she assigned herself an angry dissent when the court struck down a key provision of the Voting Rights Act. She wrote of the court’s decision in that case, “The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective.”
A MODEL FOR WOMEN AND GIRLS ROUND THE WORLD
|Former clerks of JUSTICE GINSBURG, Abbe R. Gluck and Gillian E. Metzger write in The New York Times about their experience working for her in 1997 and 2003 and all that she taught them about “how to work, how to write, how to advocate, how to partner, how to mentor.” They write of RBG, “The magnitude of her legal legacy cannot be overstated. But her impact was even greater because she modeled for us and for women and girls around the world how to live a life that reflected her legal vision. She demanded a lot from her law clerks, but demanded even more from herself. She was the hardest working, most deliberate person either one of us has ever worked for. She taught us to be strong and to stand behind our work. She gave countless women and men opportunities and support in the life of the law. She got to know all of our children. Her famous faxes came across the channels at all hours of the night. Her black coffee always brewed strong.”
FIGHTER UNLIKE ANY OTHER
|RBG ultimately died from metastatic cancer of the pancreas, an end to a long history of battling five bouts of cancer over two decades. Justice Ginsburg announced in January that she was cancer-free, but by July news broke that she was battling cancer again after a lesion was found on her liver. Grace Hauck with USA Today reviews Ginsburg’s history with cancer, and also notes that her experience with sickness was not confined to her own health. Her mother died from cervical cancer, and her beloved husband, MARTY GINSBURG, died from metastatic cancer in 2010.
A POETIC END TO A SUPERLATIVE LIFE
|Elliot Williams for CNN says it’s “nothing short of poetic” that RUTH BADER GINSBURG died as Rosh Hashanah, the Jewish New Year, started. “It is far above my, or anyone else’s, pay grade to try to divine greater meanings about death. However, we will all die. And there is something beautiful about the fact that an irreplaceable American jurist’s final moment fell on one of the holiest days her faith recognizes. She deserved nothing less. By any measure, she was a trailblazer, a beloved colleague, a matchless legal mind. Perhaps it’s fitting for a superlative life to end on a day that many people see as superlative itself.”
DRAMATIC REVERSAL
|Days before her death, JUSTICE RUTH BADER GINSBURG dictated a statement to her granddaughter in which the justice said, “My most fervent wish is that I will not be replaced until a new president is installed.” But of course, there is no expectation that PRESIDENT TRUMP or SENATOR MITCH MCCONNELL will respect those wishes. Lawrence Hurley and Andrew Chung with Reuters report that McConnell said in a statement Friday soon after news broke of RBG’s death that Trump’s nominee will receive a vote on the floor of the Senate. Hurley and Chung write, “McConnell’s stance is a dramatic reversal from the position he took in a similar situation four years ago, when he refused to act on Democratic PRESIDENT BARACK OBAMA’S election-year nomination of centrist appeals court judge MERRICK GARLAND to replace conservative JUSTICE ANTONIN SCALIA, who died in February 2016. Some Democrats accused McConnell and his fellow Republicans of ‘stealing’ a Supreme Court seat. McConnell’s explanation in a statement on Friday was that in 2016 the Senate and White House were controlled by different parties while now they are both controlled by Republicans. Democrats have called McConnell’s about-face hypocrisy.”
COURT OF EIGHT
|But even before we get into what comes next with RBG’s replacement, it’s worth remembering that the court will only have eight members to confront any issues stemming from one of the nation’s most contentious elections in history. Robert Barnes with The Washington Post writes, “The court has already refereed a number of battles between Republicans and Democrats regarding voting rights. A majority of six conservative justices could potentially decide a host of other issues raised by the election itself. The court’s ruling in Bush v. Gore in 2000 essentially decided the presidential election for GEORGE W. BUSH. With Ginsburg’s death, the court now has five conservative justices nominated by Republican presidents and three liberals nominated by Democrats.”
CAN'T COUNT ON THE CHIEF
|And for those who worry, or hope, CHIEF JUSTICE JOHN ROBERTS will join his liberal colleagues in creating a 4-4 split on issues relating to voters’ rights, it seems rather unlikely. As Ian Millhiser with Vox suggests, Roberts has been undermining the expansion of voting rights his entire career. “As chief justice, Roberts has occasionally shown moderation. He famously saved most of the Affordable Care Act — twice! And he more recently cast a surprising vote to preserve the constitutional right to an abortion (although he simultaneously signaled that this right is unlikely to last much longer). But Roberts has shown no such moderation on voting rights. Among other things, Roberts dismantled much of the Voting Rights Act in Shelby County v. Holder (2013), and he’s joined decisions making it much harder for voting rights plaintiffs to prove they were victims of discrimination. On the basic question of who is allowed to vote and which ballots will be counted, the most important issue in any democracy, Roberts is still the same man who tried and failed to strangle the Voting Rights Act nearly four decades earlier.”
FROM SADNESS TO SCHEMING
|“In Washington, grief yields quickly to calculation,” writes Jeffrey Toobin in The New Yorker. And that’s exactly what happened on Friday night immediately following the announcement of RUTH BADER GINSBURG’S death. Suddenly two questions came to the fore: Can Trump confirm Ginsburg’s successor before the end of his term and if so, who will it be? Toobin points out that McConnell faces a race against the clock that may be tough to beat. “Ginsburg died forty-five days before Election Day. It took eighty-nine days for BRETT KAVANAUGH to be confirmed after he was nominated. (It took sixty-five days for NEIL GORSUCH to be confirmed, eighty-seven for ELENA KAGAN, and sixty-six for SONIA SOTOMAYOR.) Yet Democrats have few procedural tools at their disposal to delay the process. Specifically, under the Senate’s rules, the opposition party has the right to delay a vote in the Judiciary Committee for a week; and it has the right to insist on at least thirty hours of debate on the Senate floor before cloture—that is, a final move to a vote. So it does seem procedurally possible for McConnell to push through a nominee, either before Election Day or during the lame-duck period.”
DON'T HATE THE PLAYERS
|If the Republican Senate does violate its precedent from 2016 and fills RBG’s seat either before the election or in the months following a JOE BIDEN victory, Toobin explores what Democrats can do to get some political retribution. “If the Democrats fail to retake the majority in the Senate in November, their options are few except to grin and bear it. But, if they win the majority and Joe Biden wins the Presidency, there are four major possibilities for retribution—which all happen to be good policy as well.” He suggests killing the filibuster, statehood for the District of Columbia and Puerto Rico, expanding the number of lower-court federal justice, and most interestingly, expanding the Supreme Court itself. “If Republicans succeed in stealing two seats—the SCALIA and GINSBURG vacancies—the Democrats could simply pass a law that creates two or three more seats on the Supreme Court. To do so would be to play hardball in a way that is foreign to the current Senate Democrats. But maybe, in light of all that’s happened, that’s a game they should learn to play.”
NO TIME TO WASTE
|The day after RBG’s death, PRESIDENT TRUMP made very clear that he plans to move forward with nominating someone to the Supreme Court, regardless of the precedent set by his own party with blocking the nomination of MERRICK GARLAND. At a rally on Saturday, he said he’ll nominate a woman to the high court and that he has a “moral duty” to fill Ginsburg’s seat. Anita Kumar with POLITICO reports, “He is considering JUDGE AMY CONEY BARRETT of the U.S. Court of Appeals for the 7th Circuit, and former Florida Supreme Court Justice Barbara Lagoa, now a federal appeals court judge who is Cuban American. Barrett is considered the leading contender because of her conservative credentials, Trump’s interest in picking a woman and the fact that she’s already been interviewed, according to five people familiar with the White House process.”
ALL ROADS LEAD TO THE ACA
|Shane Goldmacher, Katie Glueck and Thomas Kaplan with The New York Times reports that while Trump tries to shift his campaign’s focus away from the pandemic and toward the Supreme Court, the Biden camp is hatching a plan of its own. “While confirmation fights have long centered on hot-button cultural divides such as guns and especially abortion, the Biden campaign, at least at the start, plans to chiefly focus on protecting the Affordable Care Act and its popular guarantee of coverage for people with pre-existing conditions. Arguments in a seminal case that could determine the future of the health care law are set for a week after Election Day, with the administration supporting a Republican effort to overturn it. Mr. Biden will accuse the president, as he already has, of trying to eliminate protections for pre-existing conditions during a pandemic.”
BREAKING RANKS
|JOE BIDEN was also quick to remind the public of the Republican Senate’s position in 2016 when it refused to hold hearings for MERRICK GARLAND because it was an election year — arguing the next president should have the choice of nominee, not the sitting president (BARACK OBAMA). Now McConnell says even though it’s an election year, it’s different than the situation in 2016 because the same party controls the White House and the Senate. However, not all Senate Republicans seem willing to do those same mental gymnastics to justify voting for a Trump nominee so close to the November election. SENATOR SUSAN COLLINS and SENATOR LISA MURKOWSKI have both already stated publicly that the SCOTUS seat should remain open for the next president.
FULL STEAM AHEAD
|Today, PRESIDENT TRUMP said he will announce his Supreme Court nominee on Friday or Saturday after JUSTICE GINBUSRG’S funeral and just days before the first presidential election debate. More than 20 Senate Republicans said over the weekend that they’d support immediately filling the vacancy, and still only Collins and Murkowski have said they oppose action on a nomination before the presidential election.