News of Justice Ruth Bader Ginsburg’s death Friday hit hard, but it did not come as a surprise. She had been diagnosed with cancer five times since 1999 and fought back fiercely. When she succumbed, at the age of 87, she left hundreds of millions of people indebted to her for her lifelong battle for gender equality, justice for the LGBTQ community, fairness for marginalized people, defense of the Affordable Care Act, and more. According to a statement dictated just before she died to her granddaughter, Clara Spera, her dying declaration was, “My most fervent wish is that I will not be replaced until a new president is installed.”
Senate President Mitch McConnell’s most fervent wish is to rush through approval of a soon-to-be-determined nomination by Donald Trump of a replacement for Ginsburg, thus cementing a six-to-three conservative majority on the nation’s highest court, a stranglehold that could last for half a century. This, despite McConnell’s preventing fair consideration, let alone a vote, on Barack Obama’s nomination of Merrick Garland submitted a full nine months before the 2016 election. McConnell didn’t even allow a hearing on Garland, a widely respected jurist whose lower court record was, in ways, not dramatically different from that of Chief Justice John Roberts. McConnell defended his heavy-handed action by asserting that waiting most of a year would ensure the person selected would reflect the will of the people, as expressed in that year’s presidential race.
Today, in a despicable display of monumental hypocrisy, McConnell insists that, despite a scant 44 days left till the 2020 election, he will hold hearings and a vote. Clearly, he views his most important legacy as the death grip that arch conservatives could hold on a 9-to-6 Supreme Court and the stranglehold of hundreds of freshly-minted federal judges.
This surely amps up the salience of the Supreme Court as an issue in the upcoming election. And Trump will surely oblige by promptly submitting the name of some Federalist Society-touted zealot, designed to gin up full-throated support from his base. Be particularly fearful of Amy Coney Barrett, who had clerked for late Justice Antonin Scalia. She more than other choices is likely to excite that part of his anti-abortion evangelical base that might have stayed home because of his decidedly un-Christian demeanor and policies.
We are in crisis in so many ways, and, whatever the issue or problem, the last stop for resolution is usually and ultimately the U.S. Supreme Court. Its makeup is the issue of all issues, overriding everything else. We have to turn our frustration and anxiety into specific actions to change the downward course we’re on.
So, besides hand-wringing or crawling into bed and assuming the fetal position, what can we do about it? Make it an organizing issue, as did some donors who broke two Act Blue fundraising records in the hours after the RBG death announcement.
Certainly maximum pressure needs to be applied on Senate Republicans to oppose the rush to judicial selection. At least four of them must be willing to assert independence from McConnell.
Everyone who cares about the major issues that will be determined by the Supreme Court – from reproductive rights to the Affordable Care Act, from redrawing of congressional districts to the very voting system that underpins our very democracy – needs to work on tipping the Senate– as much as denying Trump a second term.
But we must be careful not to allow the looming Supreme Court battle become the center of attention for the remainder of the campaign. That plays into Trump’s strategy designed to align GOP Senate candidates with him and undermine ticket splitting that could otherwise occur in traditionally Red states like Montana, Iowa, North Carolina and even South Carolina.
It’s critically important that the health and economic fallout from Trump’s gross negligence regarding Covid-19 remain front and center, key to keeping the election a referendum on him. Nor should we lose sight of the dangers that can be wrought by four more years of a climate denier in the White House, a voting issue especially for young voters.
To those who warn Republicans that rushing a Trump nominee onto the court before January 20, 2021 will invite a retaliatory nuclear option, ending the 60-vote filibuster and changing the structure of the court, I caution that either of those steps requires both a change in the Senate and the White House.
Especially if a third Trump nominee is seated, the court will have lost its intended legitimacy from being somewhat above the political fray. Even without that occurrence, if the Democrats do win the White House and the Senate, serious consideration should be given to redesigning the Supreme Court, adding additional justices and implementing term limits to depoliticize it. As it stands now, five of the last six presidents have assumed office after losing the popular vote. These minority presidents have nominated thirteen justices and have had their selections confirmed by senators elected from states representing less than half the country. This anti-democratic outcome is surely not what the framers intended.
Among the various proposals to reform the process, there must be an antidote to the hyper-partisanship of the nation’s highest court. Polls indicate a majority of those surveyed favor some form of term limit. Different studies recommend a non-renewable fixed term of 15 to 18 years. There are other alternatives worth serious consideration, involving increasing the number of justices. This would not be akin to FDR’s “court packing,” because this would be a measured move to redress partisan political chicanery that has undermined the court’s Constitutional role and legitimacy, not merely as a response to disputes over court decisions.
My greatest fear is an election vote-counting disaster in multiple states, stretching out for months, that will make Florida 2000 look like child’s play, with the battles to resolve the conflicts spiraling up to the Supreme Court where Chief Justice Roberts, siding with the remaining three liberals, is outvoted by the newly confirmed Trump Justice and the Trump-dominated court.