Tributes left at the U.S. Supreme Court following the death of Ruth Bader Ginsburg, Sept. 19, 2020.
Photo by Ted Eytan, licensed under CC BY-SA.
If you are an American woman, or have ever raised or loved one, you have every reason to be grateful to Ruth Bader Ginsburg.
Years from now, when Sandra Day O’Connor is the correct answer to a history trivia question, Ginsburg’s name will probably be the one players guess instead. Although Ginsburg was the second woman to be named to the Supreme Court – more than a decade after O’Connor – I expect it will be Ginsburg most people remember as a pioneering figure in the fight for women’s equal treatment under law, and equal role in interpreting and administering it. Ginsburg’s name is the one poised to join Susan B. Anthony’s in the popular imagination.
News of Ginsburg’s death Friday evening brought tributes from across the political spectrum. They were sincere, too, unlike many public remembrances for newly departed public figures. This was obvious from President Donald Trump’s reaction, caught on camera when he received the news after a campaign rally. Similarly, while Kenneth Starr may have been the bete noir of former President Bill Clinton, who appointed Ginsburg to the Supreme Court in 1993, Starr had nothing but praise for Ginsburg in a Wall Street Journal column published over the weekend.
From the imposing intellect that got her into first Harvard’s law school and then Columbia’s, then earned her a tenured law Columbia faculty position (after no New York law firm was willing to hire a Jewish mother as an associate), to her prowess as a litigator on gender equality issues for the American Civil Liberties Union, Ginsburg was foremost in a generation of women who broke through professional and societal barriers, clearing a path for their daughters and granddaughters.
But the skills that made her a consummate advocate for the rights of women – and others excluded from full participation in society – are the ones that have inspired the conservative counterrevolution in the federal courts. Advocates are not well suited to be referees. Sometimes Ginsburg the Jurist seemed to acknowledge as much to Ginsburg the Advocate. After supporting the losing side in a 2007 decision over deadlines to bring pay discrimination cases to court, Ginsburg encouraged Congress to change the law – which it did, in the Lilly Ledbetter Fair Pay Act that President Barack Obama signed shortly after taking office. As he noted (if not in this context), elections have consequences. Conservatives agreed with Ginsburg’s belated acknowledgement that the elected branches of government, not the courts, were the proper parties to amend the statutes.
Ginsburg’s death may prove to be just as consequential as her life. By succumbing to cancer less than two months before Election Day, Ginsburg inadvertently but instantly transformed the presidential campaign. Her death will also shape a number of races that will determine which party controls the Senate next year.
Many voters like to say that political campaigns should be about “the issues.” This is mostly hogwash. People want campaigns to be about anything that puts the side they favor in the best position to win. It’s why Joe Biden and his fellow Democrats have done everything in their power to make the presidential election about Trump, whose approval ratings have sat mostly in a narrow range above 40% but below 50% since he was inaugurated, and about his handling of the COVID-19 pandemic, although the chances of having a new pandemic in the coming four years would seem rather low.
Ginsburg’s death turned this campaign into one that is about issues that will matter long after Trump and his Twitter account leave the White House. Among other things, it will determine what kind of justices will serve on the high court, and whether Democrats will have an opportunity to enlarge the court and “pack” it with their own appointees to offset Trump’s conservative nominees. More broadly, it will determine whether next year we will have a Senate aligned with the White House agenda or one determined to obstruct it.
The immediate controversy is over whether the Senate should confirm an appointee that Trump names mere weeks ahead of the election. The way you answer that question is almost certainly a function of whether you like Trump’s candidates. He released an updated list of the conservative lawyers and judges he would consider just over a week before Ginsburg died.
But consider a scenario in which Trump is narrowly reelected, while Senate control shifts to the Democrats under the leadership of New York’s Charles Schumer. If this happens, it is conceivable that not a single federal judge Trump selects at any level of the court system will be approved in the next Congress. Either Trump’s Supreme Court pick will be confirmed before Election Day (or in a lame-duck session soon thereafter), or the Supreme Court may have only eight justices for at least the next several years.
Forget the posturing from both parties about when and whether a sitting president should nominate a justice, or when the Senate should consider such a nomination. It is always in the president’s power to nominate someone to a vacant federal judicial position, just as it is always the Senate’s prerogative to act on that nomination (or not). If voters don’t like it, they can deal with it in due course. That’s democracy. The most honest assessment of the morality of the situation lies in those same words Obama once uttered in a different context: “Elections have consequences.”
Trump’s choice to succeed Ginsburg is not yet public, if he has made it. One name from his recent list that leaped to prominence is my fellow Floridian Barbara Lagoa. She is a Cuban American native of Miami, a longtime state appellate judge who briefly served on the state Supreme Court before Trump tapped her for the 11th U.S. Circuit Court of Appeals last year. Strikingly, she cleared Senate confirmation on an 80-15 vote. Her characteristics as a woman and a Latina make it uncomfortable for even most Democrats to oppose her, despite her conservative credentials.
She will face a much sterner test if Trump nominates her to replace Ginsburg. Besides the generalized complaint that the choice should be made after the presidential election by its winner, and that Senate Republicans are being hypocritical by greenlighting Trump’s election-year choice after blocking Obama’s nomination of Merrick Garland, we should expect Lagoa to come under fire for recently voting to uphold a Florida law requiring convicted felons to pay court-imposed fines and restitution before regaining their right to vote. The law, which implemented a state constitutional amendment, was criticized as being a “poll tax.” But the constitutional amendment required convicts (who previously had a much harder time regaining the right to vote) to complete “all terms of [their] sentence.” The Legislature interpreted that requirement to include financial terms.
Lagoa’s nomination itself – if she turns out to be Trump’s choice – could affect the upcoming elections. We’ll have to wait to see. But there is no doubt that Ginsburg’s departure has rearranged the political chess pieces, just as the players were truly joining the battle.