For our companion piece about how Ginsburg’s death illustrates the need for term-limited Supreme Court justices, click here.
Supreme Court Justice Ruth Bader Ginsburg passed away on September 18 due to complications from metastatic pancreatic cancer at age eighty-seven. Just days before her death, Ginsburg stated, “My most fervent wish is that I will not be replaced until a new president is installed.”
The Woman, The Myth, The Legend
Ginsburg began her legal journey as one of nine women in a class of more than five hundred students at Harvard Law School, where the dean once asked her why she deserved to take up a place that “should go to a man.” After transferring to and graduating from Columbia Law School, Ginsburg taught there and at Rutgers. She was overlooked for positions at law firms and was paid less for her work at Rutgers than her male counterparts. This discrimination fueled her gender advocacy work.
Ginsburg most famously spearheaded the cases that made discrimination on the basis of sex unconstitutional. As the director of the American Civil Liberties Union’s Women’s Rights Project in the 1970s, she litigated multiple cases that illustrated to male, establishment-oriented judges that gender inequality harmed men.
In her first big case, she challenged a Colorado law that barred never-married men from deducting caretaking expenses for dependent parents, something women and previously-married men could do. In another, she established that men are also entitled to Social Security survivor’s benefits. Ginsburg filed dozens of briefs and eventually persuaded the courts that the Fourteenth Amendment’s Equal Protection Clause extends beyond racial and ethnic minorities to include women.
Then-President Bill Clinton appointed Ginsburg to the Supreme Court in 1993 because of the massive strides she made for gender equality in the 1970s. She was the second woman appointed to the high court, preceded by Reagan appointee Sandra Day O’Connor. Coupled with her tenure on the Supreme Court, Ginsburg’s work with the second-wave feminist movement made her an icon for modern women.
The Consternation of a Conservative Court
President Donald Trump’s list of candidates to succeed Ginsburg raises concerns from social liberals who question the court’s increasingly rightward slant.
When a Supreme Court justice passes, the president would typically nominate a candidate with the advice and consent of the Senate. Under normal circumstances, the nomination of a high court justice takes between seventy-five and ninety days, sixty of which involve the Senate Judiciary Committee’s vetting process. This timeline implies that Republicans may be able to push forward a conservative judge before the November 3 election; if they can’t, they could certainly do so before the 2021 inauguration. But that won’t happen without a fight.
At the tail end of the Obama administration, Republicans cited the unofficial “Thurmond Rule”—named after the late Republican Senator Strom Thurmond—to prevent Obama’s third Supreme Court appointment. As the judiciary committee’s chairman, Thurmond did not consider new nominations in the summer before a presidential election. Since Republicans evoked this rule to bar Obama’s pick, they must honor it again and sideline Trump’s nomination.
Trump’s list of potential nominees—re-released a little over a week before Ginsburg’s passing—includes Senators Tom Cotton, Ted Cruz, and Josh Hawley. All three are judicial conservatives as well as social conservatives. Minutes after his name was announced, Cotton tweeted “it’s time for Roe v. Wade to go,” along with other anti-abortion statements, contrasting Ginsburg’s commitment to reproductive rights.
The Supreme Court could use some more justices who understand the difference between applying the law and making the law, which the Court does when it invents a right to an abortion, infringes on religious freedom, and erodes the Second Amendment.
— Tom Cotton (@SenTomCotton) September 9, 2020
Ginsburg passed away during a Trump campaign rally. The president, unaware of her death, said on stage that he would like to appoint Cruz to the Supreme Court. He made no statement about whether he should be allowed to nominate a justice even though the next election is just weeks away.
Despite being staunchly in favor of the “Thurmond Rule” in 2016, Senate Majority Leader Mitch McConnell assured that Trump would nominate Ginsburg’s replacement, arguing that the situation is different because the Senate and White House are controlled by the same party. While he did not clarify whether the Senate would vote before or after the election, there is debate among Republicans on when the nomination should occur.
In 2016, Senator Lindsey Graham stated that he would not let a president fill a vacancy in the last year of their first term, insisting that his words be held against him should the circumstances come to pass. After Ginsburg’s death, Graham—now the chairman of the Senate Judiciary Committee—changed his tune, announcing that he supports filling the vacancy.
Senators Susan Collins and Lisa Murkowski suggested that they would disagree with Senators Cruz, McConnell, and Graham. Their defection alone would not impede Trump’s pick, as four Republican senators would have to join all Democrats in opposition. Consequently, liberals worry that Ginsburg’s potential successor would undermine her progressive legacy.
The End of an Era
After Ginsburg’s death, Trump spoke with reporters: “She just died? I didn’t know that. She led an amazing life. What else can you say? She was an amazing woman. Whether you agreed or not, she was an amazing woman who led an amazing life.”
Here is a point on which we can all agree: Ruth Bader Ginsburg was an amazing woman. She fought to erase the functional differences between men and women under the law, creating a reality where gender equality is prioritized. Regardless of who selects the next justice, the nominee should embody Ginsburg’s legacy, particularly in regards to her commitment to gender equality.
Republicans should also respect the precedent they set in 2016 and let the people decide the president who fills Ginsburg’s seat. That said, there are nuances at play; as McConnell argues, the nomination process is different when the Senate and White House are controlled by the same party. Additionally, Trump may have another four years while Obama was in his final term. Most convincingly, a fifth of the Senate has turned over since 2016; the body should be able to change its mind.
However, the obvious partisanship of the 2020 nomination process taints these arguments. The situation may have been different if Republican senators hadn’t prevented Obama’s 2016 nomination, but they set the rules and should follow them.
We don’t know what direction the Supreme Court will move in, and for now, all we can say is rest in peace Ruth Bader Ginsburg. Your memory will persist with all the young women who benefited from your advocacy, myself included.
Stephanie Luiz is the president and co-founder of the Interdisciplinary Women’s Council at Northeastern University.
