Justice Ruth Bader Ginsburg, who died Friday at the age of 87, will forever have two legacies.
The one Americans could be focusing on right now is the one of legal trailblazer: Justice Ginsburg, the second woman ever to be appointed to the Supreme Court, paved the way for women’s equality before the law, and for women’s rights to be taken seriously by the courts and by society.
As an attorney she argued, and won, multiple cases at the Supreme Court in the 1970s, eventually persuading an all-male bench to apply the 14th Amendment’s equal protection clause to sex-based discrimination. On the court, she continued to point the way toward greater equality in opinions like United States v. Virginia, which held unconstitutional the Virginia Military Institute’s policy of refusing to admit women. “Inherent differences between men and women, we have come to appreciate, remain cause for celebration,” Justice Ginsburg wrote for a 7-to-1 majority, “but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.” It was sweet revenge for someone who had once been rejected for jobs at top New York law firms, and denied a clerkship on the Supreme Court, because she was a woman.
The other legacy of Justice Ginsburg’s that the country is now urgently forced to confront is the cold political reality that she died in the final weeks of a presidential campaign, at a moment when President Trump and Mitch McConnell, the Senate majority leader, appear to be dead-set on replacing her with someone who would obliterate much of the progress she helped the country make.
The court now faces a serious crisis of legitimacy. Senate Republicans, who represent a minority of the nation, and a president elected by a minority of the nation, are now in a position to solidify their control of the third branch of government. The Supreme Court, with another Trump appointee, could stand as a conservative firewall against the expressed will of a majority of Americans on a range of crucial issues.
The cynicism of the political moment stands in sharp relief against Justice Ginsburg’s idealism. She faced down multiple bouts of cancer and other health emergencies during her tenure on the bench. Through it all, she never wavered in her commitment to the court as a vehicle for a more just and more equal America. She was a dogged, tireless fighter — it was easy to imagine she might live another 20 years, battling back whatever came at her. Of course, we knew better.
Defending her decision not to retire when President Barack Obama could have picked her replacement, she said, “There will be a president after this one, and I’m hopeful that that president will be a fine president.” She never anticipated President Donald Trump, whom she called a “faker” during a 2016 interview. She shouldn’t have said it, but she was right.
Everyone who cares about the integrity of the nation’s highest court has been dreading a moment like this — the death of a justice as Americans are already casting their ballots in the most contentious and consequential presidential election in living memory. The future of the court now rests in the hands of Mr. McConnell, the man who has done more damage to the court’s standing than perhaps anyone in modern American history.
With Mr. McConnell’s help, President Trump has already filled two seats on the court with hard-right ideologues. The first, Neil Gorsuch, is a justice solely because of Mr. McConnell’s obstruction, on false pretenses, of President Obama’s nomination of Merrick Garland. The second, Brett Kavanaugh, was a highly contentious nominee with a long, troubling record in government that Mr. McConnell hid from the American people. And that was before Mr. Kavanaugh faced credible allegations of sexual assault.
At least there was no question about the circumstances surrounding the vacancy that Justice Kavanaugh filled. In contrast, Justice Gorsuch’s seat is forever stained by Mr. McConnell’s outrageous ploy to deny a Democratic president an appointment. At the time, the majority leader claimed that he was holding open the seat that had been held by Justice Antonin Scalia because it was an election year, and the American people should have a “voice” in choosing the next justice.
Mr. McConnell disavowed that position almost immediately, claiming that it only applies when the presidency and the Senate are controlled by different parties. On Friday night, he said, “President Trump’s nominee will receive a vote on the floor of the United States Senate” — even though the election is less than two months away. So much for the American people.
Throughout the Trump years, Republicans have shown little willingness to place principle above party, or to place the long-term interests of the nation above short-term political victories. But perhaps a few Republican senators will take the quickened pulse of the nation and consider the case to postpone resolving Justice Ginsburg’s replacement.
Justice Ginsburg, who was Jewish, died on the eve of Rosh Hashana, the Jewish new year. Fittingly, it is a day when Jews look backward and forward, reflecting on what has passed, and preparing for what is to come. Justice Ginsburg’s death marks the end of her long battle on behalf of equality for all Americans. Others must now carry that fight forward.
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