Can Trump and McConnell Push Through a Successor to Ruth Bader Ginsburg?

By Jeffrey Toobin, The New Yorker

19 September 20

n Washington, grief yields quickly to calculation. The announcement of the passing of Ruth Bader Ginsburg, the Supreme Court Justice and epic figure in American legal history, came in the early evening on Friday. This led to two simple questions that are now preoccupying the Capitol: Can President Trump win confirmation for Ginsburg’s successor before the end of his term? If so, who will it be?

The broad outlines of the situation are already clear. Mitch McConnell, the Senate Majority Leader, announced within hours of Ginsburg’s death that he will make sure that a Trump nominee gets a vote in the Senate this year. The hypocrisy of his position is breathtaking. Antonin Scalia died on February 13, 2016, nine months before that year’s Presidential election. On that day, McConnell said that he would not allow a hearing or a vote on a nominee from President Barack Obama, because the next President should be allowed to make the choice. McConnell and his Republican colleagues were as good as his word, and Merrick Garland, Obama’s nominee, never received a hearing or a vote. Now, of course, the Presidential election is less than two months away, and McConnell has nevertheless vowed to jam through Trump’s nominee.

Still, McConnell faces a genuine time crunch. Ginsburg died forty-five days before Election Day. It took eighty-nine days for Brett Kavanaugh to be confirmed after he was nominated. (It took sixty-five days for Neil Gorsuch to be confirmed, eighty-seven for Elena Kagan, and sixty-six for Sonia Sotomayor.) Yet Democrats have few procedural tools at their disposal to delay the process. Specifically, under the Senate’s rules, the opposition party has the right to delay a vote in the Judiciary Committee for a week; and it has the right to insist on at least thirty hours of debate on the Senate floor before cloture—that is, a final move to a vote. So it does seem procedurally possible for McConnell to push through a nominee, either before Election Day or during the lame-duck period.

The real question is more political than procedural. McConnell has proved to be a cunning leader of the Senate, but he is not an absolute ruler. Under McConnell, the Republicans changed the Senate rules to abolish the filibuster for Supreme Court nominations, so he only needs a simple majority to confirm a Justice. (He also has the tie-breaking vote of Vice-President Mike Pence.) There are fifty-three Republicans in the current Senate, and they all have their own calculations to make on the issue. Several senators, including Lisa Murkowski and Susan Collins, as well as Lindsey Graham and Chuck Grassley, have expressed misgivings about or outright opposition to pushing through a confirmation in an election year. Others, such as Mitt Romney and Lamar Alexander, might be expected to feel similarly. But those were theoretical concerns about theoretical nominations. Soon the President will present them with a flesh-and-blood choice for the Ginsburg seat—and Senate Republicans have, almost without exception, fallen into line when Trump (and McConnell) has asked them to do so. Given McConnell’s singular obsession with the courts (and especially the Supreme Court), he can be expected to use every tool at his disposal to close this deal, even if the Republicans lose control of the Senate on November 3rd. (The margin might be even slimmer at that point, if, as expected, the Democrat Mark Kelly defeats the Republican Martha McSally in Arizona. Under Arizona state law, Kelly could take office as early as November.)

In sum, then, it seems that Trump and McConnell could find their way to a vote on a nominee this year. It’s difficult, but not impossible. But who would it be? The leading candidate is clearly Amy Coney Barrett, whom Trump interviewed for the nomination that went to Kavanaugh. She is a dream candidate for the right wing of the Republican Party. She’s just forty-eight years old, a recently confirmed judge on the Seventh Circuit, a former professor at Notre Dame Law School—and believes that life starts at conception and has said that Court precedent is not sacrosanct. And she has a compelling personal story: she and her husband have seven children, five biological children and two who are adopted from Haiti. Trump has also publicly updated his Supreme Court shortlist throughout his Presidency. Other realistic candidates include Barbara Lagoa, who was the first Cuban-American to serve on the Florida Supreme Court, and now is on the Eleventh Circuit. Amul Thapar, a McConnell favorite who is now on the Sixth Circuit, was also interviewed for the Kavanaugh seat and may get another look this time. They all have the formal qualifications that are customary for Supreme Court Justices. The question is whether the Republican Senate will violate its supposed principles from 2016 to push one of them through.

If the answer is yes—if Trump fills the Ginsburg seat—the next question will be how the Democrats respond. If the Democrats fail to retake the majority in the Senate in November, their options are few except to grin and bear it. But, if they win the majority and Joe Biden wins the Presidency, there are four major possibilities for retribution—which all happen to be good policy as well. The first is the abolition of the filibuster, which should have happened decades ago. Even in the minority, McConnell will do everything he can to thwart Biden, and the filibuster will be the tool. This antidemocratic relic should be retired once and for all. Second, statehood for the District of Columbia and Puerto Rico, with two senators apiece, would be another appropriate rejoinder. Third, Congress should pass a law expanding the number of lower-court federal judges; that number has not increased since Jimmy Carter was President. Finally, the greatest and most appropriate form of retribution involves the Supreme Court itself. The number of Justices is not fixed in the Constitution but, rather, established by statute. If Republicans succeed in stealing two seats—the Scalia and Ginsburg vacancies—the Democrats could simply pass a law that creates two or three more seats on the Supreme Court. To do so would be to play hardball in a way that is foreign to the current Senate Democrats. But maybe, in light of all that’s happened, that’s a game they should learn to play.

Ruth Bader Ginsburg, the Great Equalizer

By Jill Lepore, The New Yorker

19 September 20

uth Bader Ginsburg, scholar, lawyer, judge, and Justice, died on Friday at the age of eighty-seven. Born the year Eleanor Roosevelt became First Lady, Ginsburg bore witness to, argued for, and helped to constitutionalize the most hard-fought and least-appreciated revolution in modern American history: the emancipation of women. Aside from Thurgood Marshall, no single American has so wholly advanced the cause of equality under the law.

The change Ginsburg ushered into American politics began a half century ago, and reckoning with its magnitude requires measuring the distance between now and then. At the time, only three in a hundred legal professionals and fewer than two hundred of the nation’s ten thousand judges were women. In 1971, as Richard Nixon prepared to make two appointments to the Supreme Court, he faced a dilemma. Yet another Southerner he’d tapped had been nixed for an opposition to desegregation, so Nixon decided to look for someone who was, preferably, not a racist. He considered naming a woman. “I’m not for women, frankly, in any job,” he told his aides, in a little fit of hysterics. “Thank God we don’t have any in the Cabinet.” He didn’t think women should be educated, or “ever be allowed to vote, even.” But, given the momentum of the women’s-rights movement, he conceded the political necessity of naming a woman to the bench: it might gain him a small but crucial number of votes in the upcoming election. “It’s like the Negro vote,” he said. “It’s a hell of a thing.” Then Chief Justice Warren Burger, in a similar huff, told Nixon that, if he were to nominate a woman, he’d resign. In the end, Nixon named Lewis Powell.

While all these men were dithering, Ruth Bader Ginsburg was working for the A.C.L.U., writing the brief for a case set to go before the Court, Reed v. Reed. Decided on November 22, 1971, weeks after Powell’s confirmation hearings, Reed v. Reed upended a century of American jurisprudence and the entirety of political thought going back to the beginning of the Republic. Before 1971, as Ginsburg would later write, “Neither legislators nor judges regarded gender lines as ‘back of the bus’ regulations. Rather, these rules were said to place women on a pedestal.” Thomas Jefferson had taken the trouble to explain that women had no part in the Framers’ understanding of the government devised by the Constitution. “Were our state a pure democracy,” he wrote, “there would yet be excluded from their deliberations . . . women; who, to prevent deprivation of morals, and ambiguity of issues, could not mix promiscuously in the public gatherings of men.” Women were to be excluded for their own protection. The early women’s-rights movement, in the middle decades of the nineteenth century, had not defeated that argument, and the Fourteenth Amendment, ratified in 1868, did not explicitly—or implicitly, according to the Court—bar discrimination on the basis of sex. In 1873, ruling on a case in which Myra Bradwell had sued the state of Illinois for denying her the right to practice law, one Supreme Court Justice explained his logic this way: “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.” That, as Ginsburg liked to say, was a cage, pretending to be a pedestal.

Reed v. Reed, in 1971, involved an Idaho statute that gave preference to men—“males must be preferred to females”—in executing estates. The Court, following Ginsburg’s brief, ruled for the first time that discrimination on the basis of sex violated the equal-protection clause of the Fourteenth Amendment. Writing for the majority, Burger used language that had been introduced by Ginsburg: “To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the equal-protection clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.” Just a few years later, Ginsburg was arguing her own cases before the Court, and the Chief Justice was stumbling over how to address her. “Mrs. Bader? Mrs. Ginsburg?”

Ruth Bader was born in Brooklyn in 1933 and went to Cornell, where she met Martin Ginsburg. They married and enrolled at Harvard Law School, which had only just begun admitting women. Ginsburg raised their baby, and also cared for Marty, who was diagnosed with cancer, and then she followed him to New York, finishing her law degree at Columbia. She faced discrimination on the basis of sex at every stage of her career. Tied for first in her class at Columbia, she was unable to get a job practicing law at a New York firm. But, far from being defeated by discrimination, she decided to study it. She began teaching at Rutgers in 1963; in 1969, the year her second child entered nursery school, she was promoted to full professor, and began volunteering for the A.C.L.U., where she later headed the Women’s Rights Project.

In 1972, just two months after the Court handed down its ruling in Reed v. Reed, Ginsburg became the first woman to hold a full professorship at Columbia. “The only confining thing for me is time,” she told the New York Times. “I’m not going to curtail my activities in any way to please them.” While teaching at Columbia, Ginsburg argued six cases before the Court, and won four. As Jeffrey Toobin reported in a Profile of Ginsburg, she took a crucial tip from the woman who typed her briefs. “I was doing all these sex-discrimination cases, and my secretary said, ‘I look at these pages and all I see is sex, sex, sex. The judges are men, and when they read that they’re not going to be thinking about what you want them to think about,’ ” Ginsburg said. She decided to rename this type of complaint “gender discrimination.”

Ginsburg sometimes said that tackling gender discrimination, case by case, was like “knitting a sweater,” a phrase perhaps meant to disarm her opponents. The actual sweater should have been a constitutional amendment. Ginsburg advocated, vehemently, for the ratification of the Equal Rights Amendment, which had been passed by Congress in 1972; she argued that it looked “toward a legal system in which each person will be judged on individual merit and not on the basis of an unalterable trait of birth.” And she regretted the Court’s logic in Roe v. Wade, in 1973, a case decided not on an equal-rights argument but on a privacy one. (As I pointed out in a 2018 essay, when asked by the A.C.L.U. to take on the defense of Roe, Ginsburg declined.) In 1980, when Jimmy Carter nominated Ginsburg to the D.C. Circuit Court, an aide in Strom Thurmond’s office, at her confirmation hearings, called her a “one-issue woman.” Thurmond was the only member of the committee to vote against her.

Ginsburg’s position on Roe earned her the ire of many feminists who failed to support her nomination to the Supreme Court, in 1993. “My approach, I believe, is neither liberal nor conservative,” she told the Senate Committee on the Judiciary, chaired by Joe Biden. That her nomination had been uncontroversial is entirely a myth, as is the idea that her opinions, after her confirmation, were caustic and biting, the “Ginsburns” of her character on “Saturday Night Live.” Ginsburg believed in the body of the Court, in collegiality of argument, and in moderation of expression. She was famously, even maddeningly, careful. She took so much time thinking about what people said to her, and choosing her own words, Toobin reported, that “her clerks came up with what they call the two-Mississippi rule: after speaking, wait two beats before you say anything else.”

Her most significant opinions were those she wrote for the majority, including in U.S. v. Virginia, a 1996 case in which the Court ruled that the Virginia Military Institute’s refusal to enroll female students violated the equal-protection clause. Ginsburg’s opinion served as a history lesson, partly for the public and partly for her fellow-Justices. “Through a century plus three decades and more, women did not count among voters composing ‘We the People,’ ” she wrote. “Not until 1920 did women gain a constitutional right to the franchise. And for a half century thereafter, it remained the prevailing doctrine that government, both federal and state, could withhold from women opportunities accorded men so long as any ‘basis in reason’ could be conceived for the discrimination.” The turning point, she observed, had come in Reed v. Reed: “In 1971, for the first time in our Nation’s history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws.”

Of course, the real turning point had come when Ginsburg joined the bench. For most of Ginsburg’s career, the Court had been fairly moderate. It was not until the nineteen-eighties, when Reagan appointed Antonin Scalia, that modern conservatives began to join the Court. During Ginsburg’s tenure, George W. Bush appointed Justices Roberts and Alito, and Trump appointed Gorsuch and Kavanaugh. As the Court shifted, Ginsburg was cast as its Great Dissenter, though the role went largely against her disposition. Ginsburg cherished honest disagreement, firmly expressed, but she disliked petty, scathing opinions. In “Speaking in a Judicial Voice,” a lecture she delivered in 1992, the year before she joined the Court, she condemned “the immoderate tone of statements diverging from the positions of the court’s majority.” “The most effective dissent,” she wrote, “spells out differences without jeopardizing collegiality or public respect for and confidence in the judiciary.”

She stood by that, even as she found herself writing more and more separate opinions, a turn that began with Bush v. Gore (2000), in which she objected to the majority’s decision to halt the recount in Florida. “The Court’s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’s own judgment will not allow to be tested,” she wrote. “Such an untested prophecy should not decide the Presidency of the United States.” At the conclusion of that opinion, she allowed a rare breach of decorum, writing not “Respectfully, I dissent,” but, with a quiet fury, “I dissent.”

Ginsburg’s dissents carried a particular power, not only rhetorically but politically. On the Roberts Court, she became the leader of the liberal wing, and, in 2007, in a case involving Lilly Ledbetter, a supervisor for Goodyear Tires, she wrote a dissent objecting to the majority’s denial of an argument about sex discrimination in employment. That opinion was so compelling that it led to the passage of the Lilly Ledbetter Fair Pay Act, signed by Barack Obama in 2009. And perhaps Ginsburg’s most resonant dissent, in light of this year’s election, is the one she wrote in Shelby County v. Holder, in 2013, in which the majority all but struck down the 1965 Voting Rights Act, on the basis of the bizarre argument that it (and one of its features, known as “preclearance”) had effectively solved voter suppression for posterity. “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes,” Ginsburg wrote, “is like throwing away your umbrella in a rainstorm because you are not getting wet.” When she read the dissent aloud in Court, as Jane Sherron De Hart observed in a recent biography, she added a conclusion that was not in the written version. “The arc of the moral universe is long, but it bends toward justice,” she said, quoting Martin Luther King, Jr. But it only bends that way, she went on, “if there is a steadfast commitment to see the task through to completion.” Much that Ginsburg predicted about the stripping away of voting rights has come to pass.

During Ginsburg’s final two decades on the court, she fought colon cancer (first diagnosed in 1999), pancreatic cancer (2009), underwent heart surgery (2014), suffered injuries from falls (2012 and 2018), underwent surgery for malignancies on her left lung (2018), and had radiation when the pancreatic cancer returned (2019). She seldom missed a day in court. She also regrettably, and presumably thinking Hillary Clinton would defeat Trump in 2016, resisted calls to retire during Obama’s second term, when he could have appointed a liberal Justice as her successor.

The pleasure Ginsburg took in her own celebrity, as she became a feminist icon, is understandable, if also troubling. Historically, the Court is meant to be insulated from public opinion, which also requires of the Justices that they lead largely private lives. Ginsburg was by no means the first to flout this convention, but she flouted it considerably, appearing on late-night television shows and becoming the subject of documentaries, feature films, and books for children. She spoke, in the last years of her life, to crowds numbering in the tens of thousands. And she came to regret the changes to the Court itself, the way hyperpolarization had transformed the nomination and confirmation process. “I wish I could wave a magic wand and have it go back to the way it was,” she said in 2018, after the Kavanaugh hearings.

There is no magic wand, and there is no going back. The Supreme Court, like much of the rest of the federal government, is at risk of becoming an instrument of the executive instead of a check against it. Preserving the Court’s independence will require courage and conviction of Ginsburgian force. And there are changes, too, that most of us would never want undone. A century after the ratification of the Nineteenth Amendment, Ruth Bader Ginsburg’s pioneering career as a scholar, advocate, and judge stands as a monument to the power of dissent. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. It took centuries, and tens of millions of women, to dismantle that nonsense. And no single one of them was more important than Ginsburg, warm-hearted, razor-sharp, and dauntless.