Upon the untimely death of Justice Ruth Bader Ginsburg, Donald Trump promised to name “a woman” to fill her seat, as if the sum of Ginsburg’s identity was her gender.
In fact, the woman that Trump has nominated — Amy Coney Barrett — is an insult to all that Ginsburg stood for.
A radical right-wing justice is replacing a progressive champion. The conservative successors oppose the very advances that opened the doors for them to sit where they are.
We witnessed this cynical ploy before when George Bush chose a black man — Clarence Thomas — to fill the seat of Thurgood Marshall, the champion of civil rights. Although of the same race, the two were of opposing judicial complexions. The nomination of Thomas, like that of Barrett, demonstrated scorn, not respect for the civil rights heroes they were named to replace.
Barrett’s appointment is the first since Clarence Thomas that transforms the ideological balance of the Supreme Court. A radical right-wing justice is replacing a progressive champion. The conservative successors oppose the very advances that opened the doors for them to sit where they are.
Thurgood Marshall was the legal giant who sculpted the campaign to challenge segregation, ultimately winning Brown v. Board of Education that ruled it unconstitutional. As a justice, he wrote many decisions that expanded civil rights and criminal justice protections, particularly for racial minorities. Clarence Thomas had neither Marshall’s qualifications nor his record. In his decades on the court, Thomas is famous mostly for his hostility toward civil rights, affirmative action and the rights of the accused. His furious dissents are so extreme that he often stands alone.
Ruth Bader Ginsburg was known as the Thurgood Marshall of gender equality. She litigated the lawsuits that eventually led the Supreme Court to rule that sexual discrimination was unconstitutional. As a justice, she continued that work. Even in dissent, her arguments were so compelling that the “Notorious RBG” moved Congress to act when the conservative majority of the court refused to.
Barrett has benefited from the triumph of the women’s movement. A mother of seven, she was able to balance family life and career in the law largely because Ginsburg and others broke down the locked doors and busted through the glass ceilings that so limited women of earlier generations. Sadly, Barrett espouses an ideological agenda that would undermine the very rights that Ginsburg fought so successfully for. And unlike Thomas, her addition to the Supreme Court now consolidates the right-wing, pro-corporate majority.
In the Senate hearings on her nomination, Barrett will no doubt seek to soften her record. She’ll likely claim to be an “originalist” as opposed to an activist judge. She’ll perhaps nod to the importance of precedent and duck any questions about substance.
Do not be deluded. Behind the gentle smile and experienced academic, Barrett is a committed ideologue, well vetted by right-wing judicial activists. She claims to be someone grounded in the original intention of the founders, but notes that some changes are baked into society, leaving her free to decide what stands and what falls. She says judicial precedent isn’t important if the original case is decided incorrectly, leaving her free to discard precedents like Roe v. Wade, which she opposes.
If she is confirmed, the right-wing majority on the court will be emboldened. The Affordable Care Act, which the Trump administration seeks to have overturned, affirmative action, sensible controls on guns, and centrally, women’s right to an abortion are all likely to be weakened or overturned. Moreover, an emboldened conservative majority will expand its efforts to limit the power of Congress to protect the environment, to get money out of politics, to regulate big corporations or to tax wealth.
Worse, Barrett’s nomination — made when people have already started voting in a presidential election — maliciously denies Americans a voice in who should make this lifetime appointment.
Worried about losing the election, Trump and his Republican Senate enablers are rushing to confirm someone that they assume is out of step with the majority of the country. Barrett has been nominated by a president elected with a minority of the popular vote and would be confirmed by a Senate majority representing a minority of the voters. Worse, Trump argues that the nomination must be rushed through before the election so that Barrett is in place when the legal challenges to the election that he is planning come before the Supreme Court.
The Senate should allow the people to elect the president who makes this lifetime appointment. If Republicans force the issue, Barrett should make it clear that she will remove herself from any case relating to the election.
Nothing will do more to undermine the legitimacy of the court and the viability of this Republic than for a Trump nominee, crammed through at the last moment, to sit on cases brought to frustrate the will of the electorate and calling on the court’s conservative majority to decide who the president will be.