Ruth Bader Ginsburg died on Friday at the age of 87. Photo: Nikki Kahn / The Washington Post via Getty Images
Artillery Row

Letter from Washington: After RBG

The death of a great American shakes up the race for the White House

The death of Ruth Bader Ginsburg on Friday, at the age of 87 after complications of pancreatic cancer is, first and foremost, the loss of a great American.

“Our Nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague,” said Chief Justice John Roberts.

Bill Clinton, who as President appointed her to the Court in 1993, said that “Ruth Bader Ginsburg’s life and landmark opinions moved us closer to a more perfect union. And her powerful dissents remind us that we walk away from our Constitution’s promise at our peril.”

In both her appearances before that court as an advocate and her decisions as one of its nine justices, Ginsburg was at the heart of the battle for full legal equality for American women, advancing protections against discrimination and expanding the meaning of “we the people”. She arguably deserves more credit than anyone else for the legal victories of American feminism in the second half of the 20th century.

She also embodied those changes in her own extraordinary life: born in Brooklyn to Jewish immigrants in 1933 and rising to become the second female justice on the highest court in the land.

More recently, she was elevated to the status of rockstar by liberal America, with fans buying RBG t-shirts and action figures, and even tattooing the Notorious RBG on their own bodies. If adulation for Ginsburg was deserved, it was also evidence of America’s tribal dysfunction and legislative ineptitude.

Unsurprisingly, there has been no pause in hostilities after Ginsburg’s death, something she evidently knew would be the case. “My most fervent wish is that I will not be replaced until a new president is installed,” she said in a statement dictated to her granddaughter just days before she died, anticipating the coming row. 

This is the question that will be the focus of American public life in the coming days and weeks: should the President nominate, and the Senate vote to approve, a replacement justice so close to an election?

Mitch McConnell, the Republican leader in the Senate, wasted no time in giving his answer. “President Trump’s nominee will receive a vote on the floor of the United States Senate,” he said on Friday night.

With the possibility not just of a Democratic president, but also a Democrat-controlled Senate, the conservative imperative to nominate a replacement before January could hardly be greater. Until her death, the court had a 5-4 conservative majority, though Chief Justice Roberts, a George W. Bush appointee, is increasingly seen as a swing vote. If Donald Trump chooses Ginsburg’s replacement, his third pick would decisively tilt the balance of the court.

However much it may enrage Democrats, there are no constitutional obstacles to the move. 

Instead, the main charge is hypocrisy. When McConnell refused even a vote on Merrick Garland, Barack Obama’s nominee to fill the vacancy created by the death of Antonin Scalia in 2016, the rationale was that it was inappropriate to do so in an election year. Now the tables have turned, McConnell is a lot less worried about this unwritten rule.

McConnell has created some rhetorical wiggle room for himself and his colleagues by arguing that the difference between 2016 and 2020 is that four years ago, different parties controlled the White House and the Senate, whereas now Republicans control both. Nonetheless, the about turn is a reminder of the ruthlessness with which McConnell wields the power that comes with control of the Senate.

There is no shortage of embarrassing pronouncements from 2016. Then, South Carolina Republican Lindsey Graham said, “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.” Now he is the Chair of the Senate Judiciary Committee and will therefore play a pivotal role in a hypothetical nominating process. 

A handful of other Republican senators — some of whom, like Graham, face tight re-election battles — have been as explicit even more recently. In a 53-47 Senate, Democrats need four Republican rebels to block an appointee. America is waiting to hear from Mitt Romney, Lisa Murkowski, Chuck Grassley and Susan Collins.

There are awkward questions for Democrats too. If it was inappropriate for McConnell to stall in an election year in 2016, why is it imperative that he do so now? Ginsburg’s death may have come a lot closer to polling day than Scalia’s (46 days rather than 11 months), but where should the line be drawn?

Beyond the narrow question of the appropriateness of filling the newly vacant spot comes with a fascinating and complicated web of political implications.

A freshly minted conservative justice in situ before the election would enrage liberal America, surely motivating higher turnout. Beyond November, a 6-3 conservative court will likely persuade more Democrats of the case for a radical rewriting of the rules of American democracy: pack the court, abolish the filibuster, ditch the electoral college. Events are conspiring for these to be the focus of a possible Biden presidency.

For Republican voters, the implications are less predictable. The fight might highlight ideological differences between the left and the right and keep wavering conservatives in line. Or it could undermine the basis of the deal Trump has struck with the conservative movement. With a solid conservative majority on the court before election day, there would arguably be less of an imperative for some on the right to vote for a man about whom they have serious misgivings.

Interestingly, McConnell and Trump’s interests are not completely aligned. For the former, a generation of conservative rulings is an end in and of itself. For the latter, it is a bargaining chip. That could mean differences of opinion on the timing of the nominating process.

For now, the President and McConnell are on the same page. Trump tweeted this morning: “We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!”

For all the unpredictable consequences of Friday’s news, Trump will welcome this disruption to a Presidential race in which he was trailing. These may seem crass considerations so soon after the loss of such a consequential justice, but American politics long ago ditched the politeness that would have forbidden such morbid thinking.

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