As students from afar of U.S. Supreme Court Justice Ruth Bader Ginsburg, who died Friday at 87, how are we to assess her legacy?
Simply: She was a fervent advocate for women’s equality. From her early days arguing landmark gender discrimination cases for the American Civil Liberties Union to her nearly three decades on the high court, Ginsburg was a trailblazer for gender equality.
For the next six weeks, though, as we navigate a painfully combative presidential election, that legacy is likely to be overshadowed by the fight over her seat. Within moments of the announcement of her death, ugly politics emerged, as they inevitably would. Senate Majority Leader Mitch McConnell wasted no time announcing the Senate would act on a soon-to-be-named nominee of President Donald Trump, even though Election Day is weeks away.
We can call McConnell’s stance hypocrisy, tragedy or reality: It is clear when it comes to judicial nominees, whoever controls the Senate makes the rules. Elected officials, including presidents and senators, are in office until the moment they aren’t. There is nothing in the Constitution to dictate when presidents can or cannot move forward with a pick. There is no official thing as “election season,” and no clock that runs out on a Senate committee voting.
And as witnessed with time, there is no tact or courtesy in politics that either side must practice. Parties have argued this issue both ways when it suits them. President Barack Obama nominated Merrick Garland in the last year of his second term, but the Senate sat on it. Years earlier, one Democratic senator took an opposite approach. He said: “Once the political season is underway, and it is, action on a Supreme Court nomination must be put off until after the election campaign is over.” That was Joe Biden.
The Senate then will proceed, and the rank hypocrisy of McConnell and his party who sat out the vacancy of the late Justice Antonin Scalia in 2016 will be on full display. It might backfire, putting at-risk GOP senators into hot seats and exposing them to an even more resolved Democratic electorate. The Senate has the right to proceed. It will do so at its own peril.
Ginsburg would not approve, even though she was a master at unforgiving opinion writing when it suited the moment.
She is remembered for her searing dissent in the 2014 Hobby Lobby case. The Court upheld in a 5-4 decision that the Affordable Care Act’s contraceptive mandate violated the Religious Freedom Restoration Act, and that Hobby Lobby as a corporation could reject contraceptive coverage in its health plans to employees. The decision widened the doorway to claim religious exemptions and limit access to birth control. It set off a firestorm.
Ginsburg in her dissent and in interviews later made clear the constitutional boundaries she believed her colleagues wrongly crossed, as well as her personal offense at their expansive interpretation of RFRA. Limiting the ability of women to access contraception was, in her view, a violation of a woman’s basic right to chart her own destiny. She called the decision “of startling breadth.”
In her final days, Ginsburg asked that her replacement be nominated by the next president, after the election. It appears she will not get her wish.
— Chicago Tribune