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Do the Right Thing: Obey RBG's Last Wish

Give Justice Ginsburg the proper send-off and let the election winner choose.

U.S. Supreme Court Justice Ruth Bader Ginsburg died September 18, 2020, sparking a political fight over her replacement as early voting has already begun for the next general election. (Photo: Steve Petteway/Supreme Court of the United States)

U.S. Supreme Court Justice Ruth Bader Ginsburg died September 18, 2020, sparking a political fight over her replacement as early voting has already begun for the next general election. (Photo: Steve Petteway/Supreme Court of the United States)

Two memories: in February, I attended a public conversation my friend and colleague Bill Moyers conducted with Ruth Bader Ginsburg at Union Theological Seminary on the Upper West Side of Manhattan. She was there for the Judith Davidson Moyers Women of Spirit Award Lecture, and had postponed attending the year before because of health concerns. She was recuperating from the latest of her bouts with cancer.

For the second time in less than five years, Republicans are ignoring the rules and in broad daylight attempting to steal a Supreme Court seat.

On this February afternoon, she was tiny and so frail, accompanied on and offstage by an aide who made sure she was safely in her chair. But her mind was sharp and strong. She talked about her background, education, and some of her notable dissents from the Supreme Court's majority—in Shelby County v. Holder, the 2013 decision that eviscerated the Voting Rights Act of 1965; and Burwell v. Hobby Lobby, the 2014 case claiming that for religious reasons, family-owned businesses did not have to pay Obamacare costs for their employees' use of contraception.

She spoke of a professor of constitutional law at Cornell who, during the McCarthy era of red baiting and persecution, helped inspire her to become a lawyer. "He wanted me to be aware that our country was straying from its most basic values. That is, the right to think, speak, and write as you believe. And not what a big brother government tells you is the right way to think, speak, and write."

"And he made me aware that there were lawyers standing up for these people, reminding our Congress that we had a First Amendment that guarantees freedom of expression. We have a Fifth Amendment protecting us against self-incrimination... So it was that idea of a lawyer is more than someone who works for a day's pay, but someone who has a skill that can help make things a little better."

Straying from our most basic values, her professor warned. Which brings me to the other memory, another February, four years ago in 2016. The death of conservative Associate Justice Antonin Scalia had just been announced. I was at an awards dinner, sitting with then-U.S. Sen. Al Franken (D-Minn.). He was fielding calls from media and associates, speculating as to who President Barack Obama might name to take Scalia's place. And then came word that Senate Majority Leader Mitch McConnell (R-Ky.) had announced that any court choice made by Obama would be unacceptable because "the American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president." Jaws and silverware dropped to the table.

With nearly 10 months to go before the presidential election, Obama's choice, Merrick Garland, was ignored by the Republican-majority Senate. There were no confirmation hearings, and in some cases GOP senators even refused to see Garland for a courtesy visit. Then, a week and a half after his inauguration in January 2017, Donald Trump named conservative Neil Gorsuch to the seat. He was on the Supreme Court less than three months later.

Now, in an act of the rankest hypocrisy, despite the November election just weeks not months away, and voting already begun, McConnell announces he will push ahead with a right-wing replacement for the late Justice Ginsburg, the timing uncertain at this writing but before next year's inauguration (some think he may want it done before November 3, as logistically and politically fraught as that may be, in case the election winds up in the court, as happened in 2000). This is in direct contradiction to his own 2016 pronouncement and the express request of Justice Ginsburg on her deathbed: "My most fervent wish is that I will not be replaced until a new president is installed."

Of course, President Trump is totally down with McConnell's two-facedness—it's fits his style, after all—tweeting: "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!"

Democrats and progressives—and all fair-minded citizens of principle, really, no matter their affiliation—rightfully are furious at this unprincipled double standard, this duplicity. For the second time in less than five years, Republicans are ignoring the rules and in broad daylight attempting to steal a Supreme Court seat.

The time has come to fight back by aggressively voting Trump out and overturning the GOP Senate. And if McConnell and Trump insist on ramming through this nomination before January, and if Democrats take the Senate majority next year, serious consideration should be given to expanding the number of Supreme Court seats to counter this seizure of judicial control. (And I know that in the past Justice Ginsburg expressed opposition to such an idea, but she could not have foreseen our current crisis and there is nothing in the Constitution about court size. It is at least worthy of thorough discussion.)

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By the way, keep in mind there’s another toxic scenario, suggested by some in recent weeks: that Clarence Thomas, now 72, might step down to give Trump and McConnell a double bite of the apple, allowing the appointment of two young right-wingers who would cut out the legs from beneath the bench for decades.

They battle on and so sadly, we must, too. Remember what's at stake: equal justice, healthcare, women's reproductive rights, and more.

It's not news that McConnell is especially single-minded and ruthless in his pursuit of more and more conservative federal judges. Last week, the Senate confirmed eight of them in three days, bringing the total number of judges appointed in the Trump years to 216—so far—and  ignoring such essential pending legislation piled up as the Phase 4 Covid relief bill languishes despite 200,000 dead and millions out of work. This is just the latest insult to the majority of Americans.

Sure, it would be nice to have the time to properly mourn and memorialize the greatness of Ruth Bader Ginsburg, to reflect on her humanity, wisdom, and compassion. But those who would send this country back to repressive times past will not allow us that. They battle on and so sadly, we must, too. Remember what's at stake: equal justice, healthcare, women's reproductive rights, and more. But at the same time, we must not let this latest battle in the culture wars distract from all the other horrors that make Donald Trump a failed president—the corruption, deceit, and incompetence.

From the vantage point of age and experience, Justice Ginsburg was more hopeful about the future than many of us are these days. That Wednesday back in February, she said to Bill Moyers: "You think of the way things were, the racial injustice that existed in our country, the confined opportunities open to women. It was the closed-door era for women, and I have seen those doors open wide. I've seen what was once the closed door replaced by a welcome mat. So I am an optimist, because I know that there is the possibility of change if people really care to make it happen...

"My faith is in today's young people... I think there is a spirit among today's young people that wants to combat injustice. That's what I believe, and I would do everything I could to encourage that."

Many have noted, including her old friend Nina Totenberg, NPR's longtime Supreme Court correspondent, that according to tradition, those who die, as Justice Ginsburg did, on the eve of Rosh Hashanah, the Jewish New Year, "are the ones God has held back until the last moment because they were needed most and were the most righteous."  They are called tzadiks, possessed of a special gift to make the world and beyond a better place.

Moyers recalled what Ruth Bader Ginsburg said shortly after she was sworn in: "I am a judge born, raised, and proud of being a Jew. The demand for justice runs through the entirety of the Jewish tradition. I hope in my years on the bench of the Supreme Court of the United States I will have the strength and courage to remain constant in the service of that demand."

On the wall of her chambers, there hung a quote from Deuteronomy in the Old Testament: "Justice, justice shall thou pursue, that thou may thrive."

A bit more prosaically, a friend of mine wrote Saturday morning: "We've lost our goalie. Time to go on offense." RIP RBG. Thank you for being among us. Give her what she asked for and let the next president choose the next justice. May we demonstrate the righteousness, courage, and devotion—those most basic values—that Justice Ginsburg sincerely believed she saw in us.

Michael Winship

Michael Winship

Michael Winship is the Schumann Senior Writing Fellow for Common Dreams. Previously, he was the Emmy Award-winning senior writer for Moyers & Company and BillMoyers.com, a past senior writing fellow at the policy and advocacy group Demos, and former president of the Writers Guild of America East. Follow him on Twitter: @MichaelWinship

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