Ruth Bader Ginsburg, American Icon
I love how life throws you curveballs. And so it is that I am sitting here putting the finishing touches on my weekly editorial with the TV in the background and I hear that Justice Ruth Bader Ginsburg has passed on. In this epic time in our history when the country seems so divided, we all need to take a deep breath and recognize a great American life. She was born Ruth Bader in Brooklyn, NY in 1933 of a Russian Jewish emigrant father and a Jewish mother from Brooklyn. Her first taste of hardship came early when her mother died the day before Ruth's high school graduation. She went on to attend Cornell University where she met her husband Martin Ginsburg who she married a month after graduation in 1954. She gave birth to her first child a year later while working for the Social Security Administration as her husband was a new Army officer at Ft. Sill Oklahoma. In 1956, Ginsburg enrolled at Harvard Law School, where she was one of only nine women in a class of about 500 men. The Dean of Harvard Law reportedly invited all the female law students to dinner at his family home and asked the female law students, including Ginsburg, "Why are you at Harvard Law School, taking the place of a man?" When her husband found work in New York City, Ginsburg transferred to Columbia Law School where she graduated in 1959.
Throughout her long career she was a trailblazing advocate for women’s rights starting with the American Civil Liberties Union where she participated in over 300 gender discrimination cases by 1976. She ultimately argued 6 of those cases before the Supreme Court, winning 3. The role of women in the workplace owes much of its progress to Mrs. Ginsburg. In 1980, she was the confirmed by the Senate as a justice on United States Court of Appeals for the District of Columbia Circuit. During her time as a judge on the DC Circuit, Ginsburg often found consensus with her colleagues including conservatives Robert Bork and Antonin Scalia, earning her a reputation as a "cautious jurist" and a moderate. In 1993, President Clinton nominated her to the Supreme Court, and she was confirmed by a 96–3 vote, following Sandra Day O’Connor as only the second female justice. Justice Ginsburg became a Supreme Court Justice at 60 years old and went on to have an incredible 27 year “second career” when most people that age would be thinking about retirement. From that perspective, she is a role model for me as I start a second career at the age of 60.
Justice Ginsburg’s 27 year tenure on the Supreme Court can best be characterized as a “solid liberal vote.” That said, she staunchly supported the details of the process and was well respected by all of her colleagues. She also became a dear friend of Justice Antonin Scalia, who could not have been more diametrically opposed to her in judicial matters. They were both big fans of opera and frequently socialized with one another. In public, they enjoyed poking fun at each other. Scalia thought she was “a lot of fun.” Justices Scalia and Ginsburg stand as pillars for two opposing views of the Constitution, however, their ability to forge a relationship despite differences is certainly a model for our time. Ginsburg, a pioneer for women’s rights and a fixture in the liberal world, frequently touted the importance of a “living Constitution.” Scalia was an “originalist” who believed the Constitutional language was fixed. In a 2015 forum at George Washington University, the Scalia-Ginsburg relationship was on full display.
“To my mind, no Constitution is living unless it is enduring. If it is subject to whimsical change by five out of nine votes on the Supreme Court that decide it ought to mean something different… that is not a living Constitution,” he said.
Justice Ginsburg broke in to remind him that those who built the Constitution “were white, property-owning men.”
Justice Scalia was intractable in explaining that his opinion was simply a matter of questioning how decisions are made in the federal system. But even at their most confrontational, the justices remained even-keeled, showing that their bond came first. Ginsburg interrupted Scalia at one point with a gentle urging of, “But that argument won’t work, Nino…” using the nickname Scalia reserved for close friends and colleagues.
Ginsburg mourned the loss of collegiality that was once part of Capitol Hill, stating at a 2017 lecture at Stanford University, “I wish there was a way I could wave a magic wand and put it back when people respected each other, and voted for the good of the country and not along party lines. Someday there will be great representatives who will say ‘Enough of this nonsense. … I hope that day comes when I’m still alive.” I could not agree more but I’m sorry to say that it hasn’t happened yet happen Ruth.
But from my view there is plenty of inconsistency in some of Justice Ginsburg’s opinions which are symptomatic of the “double-standard modus operandi” in politics. She broke Supreme Court tradition of not weighing on politics in 2016 where she drew criticism, and later apologized, for saying she feared for the country and the court if Donald Trump was elected. At the 2017 Stanford lecture, she stated that “If I were queen, there would be no death penalty,” and that she would “change the electoral college.” I find her opposition to the death penalty is at odds with her staunch support for abortion. Despite the twisted definitions of “human life” in the Roe v. Wade decision, a fetus is a human life by any reasonable definition and common sense. Just ask any expectant mother who cherishes her pregnancy and takes any steps necessary to bring her baby into the world. Look at how hard science focuses on discovering other life in the universe. Last week, scientists discovered phosphine in Venus’ atmosphere. It’s a chemical that is exclusively the result of biological processes on earth. Scientists universally believe a simple one-celled organism found on another planet would be considered “life.” Regardless of which side of this debate you’re on, it’s preposterous to argue that a fetus is not life.
On the other hand, death penalty opponents cite the sanctity of life and the super rare chance that a convicted murderer might be innocent, as reasons to not administer capital punishment. Capital punishment has been a linchpin of social justice in most countries for millennia. Like abortion, which still claimed over 623,000 lives in 2016 (36% of which are African American babies), capital punishment should be rare. Thankfully the number of people put to death and the number of abortions has been decreasing for some time. Still, despite her great advocacy for minority rights, I find Justice Ginsburg’s stances on abortion and capital punishment to be glaringly at odds with each other.
Justice Ginsburg’s disdain for the electoral college is equally troubling given that this an explicit constitutional mechanism designed as part of our brilliant system of checks and balances. Changing it is supposed to require a constitutional amendment, but that doesn’t seem to stop people who support big federal government who don’t like checks and balances when it comes to their power. Ginsburg was a tireless fighter for “minority rights” so it is quite odd that she opposed those inconvenient constitutional checks that prevent tyranny of the majority and protect minority rights. However, many great leaders in our country’s history, were flawed humans. Many of our founders owned slaves. Franklin Roosevelt, JFK, Martin Luther King and Bill Clinton were well-known skirt chasers. Mr. Clinton’s comeuppance may finally come once this awful Jeffrey Epstein pedophile episode is fully exposed. Talk about a hypocrite! And as great as Ruth Bader Ginsburg was, there was plenty of hypocrisy in her career as a Supreme Court Justice in my opinion. Still, she was a historic figure and it is totally appropriate to invoke the ancient Jewish prayer, “May your memory be a blessing.”
Justice Ginsburg death could not have come at a more momentous point in U.S. history. Even before her passing, the 2020 election was being characterized as the most pivotal in our lifetime. Now, November 3, 2020 has become a presidential election, Super Bowl, World Cup and World Series all rolled into one. Democrats, who are already shouting that her replacement must wait until after the election, still have heartburn over Senator Mitch McConnell’s refusal to vote on President Obama’s nominee Merrick Garland in 2016. They cry double-standard and they would be mostly correct. Republicans cite the clear constitutional process that authorizes the President to nominate and the Senate to confirm or deny that nomination, regardless how close this event is to an election. I can empathize a little with the position of the Democrats on waiting until after the election. Afterall, Ginsburg made this wish explicit to her family on her deathbed. I am sure that if the tables were switched and the Democrats held the majority in the Senate, the GOP would be calling to wait until after the election. And I think the Democrats would ignore the GOP plea to wait, and then vote on a nominee from their Democrat President. Despite the calls to wait, there is plenty of precedence of justices being appointed in an election year. On script and just hours after the announcement of Ginsburg’s death yesterday, Mitch McConnell declared, “President Trump’s nominee will receive a vote on the floor of the United States Senate.” Let the games begin.
There isn't much Democrats can do to stop President Trump from nominating someone and the GOP Senate from confirming that person quickly if they choose. Republicans hold a 53-47 majority in the Senate, and former Democrat Majority Leaders Harry Reid and the Democrats eliminated the filibuster for executive branch nominees and judicial appointments below the Supreme Court. Politics being a game of power and "what goes around comes around", Mitch McConnell and the GOP majority eliminated the filibuster for Supreme Court nominees in 2017.
In response to the likely outcome of a nominee vote before the election, Senate veteran Ed Markey said this on his Twitter feed yesterday;
“Mitch McConnell set the precedent,” Markey said. “No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
Then there is Democrat Vice Presidential candidate, Kamala Harris, who supports expanding the court in an interview on August 12, 2020, before Ginsburg died. If you read my last week’s blog or listened to the podcast, “American Pulp Fiction,” you’d know that Democrats are planning to use “court packing” and several other cynical strategies to guarantee Democrat rule in all branches of federal power for years to come. This includes declaring Washington DC and Puerto Rico new states, with new Senators and Congressional Representatives who will most certainly be Democrats.
I’m sure some of you are thinking, “They can’t do that.” You’d be wrong. The Constitution doesn’t limit the ability of Congress in either of these areas. In fact, the Admission to the Union Clause of the Constitution, found in Article IV, authorizes the Congress to admit new states into the United States. The only caveat was that if new states are carved out of existing states, it must come with the consent of the people those existing states. This is an important limitation, since the Democrats have proposed breaking up California into 3 separate states in addition to adding DC and Puerto Rico. The proposed map of California, North California and South California is an act of political gerrymandering at the highest level. In fact, a petition to do this is led by venture capitalist Tim Draper who has already gathered enough signatures to appear on the November ballot in California. If the measure is approved by voters, the governor would forward the notice of state approval to Congress, which would vote to ratify the creation of the new three-state structure. Of course, the President would have to sign this. Politics is a game of raw power and neither side wants to unilaterally disarm. Negotiating comprises and stepping back from the brink is not a skill our federal leaders currently possess.
Then there is the real possibility that, in a close election, neither Joe Biden nor Donald Trump would concede defeat and use their armies of lawyers to challenge the millions of new universal mail-in ballots that were authorized by many states due to their COVID restrictions. The Twentieth Amendment to the Constitution stipulates that the term of the previous President ends and the term of the new President begins on January 20. It stipulates the same for members of Congress on January 3. Further, the amendment specifies:
“Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.”
This means the House of Representatives could select the next President. If the Democrats hold the House in November, that could be Nancy Pelosi or anyone they choose. Add to this the real possibility of sustained civil unrest between November 3, 2020 and January 20, 2021, and we have the potential for a serious Constitutional crisis in 6 weeks.
If you still think this is far-fetched you’re not paying attention. Our founders knew that our republic was a fragile thing that would take lots of care and feeding. That’s why they designed checks and balances to slow things down and make it hard for tyranny to take hold. The Supreme Court is a critical part of those checks and balances, and it is highly likely it will be called upon to adjudicate issues in the upcoming election. I’m sure Justice Ginsburg knew this, and she unfortunately went to her grave not knowing the outcome. I don’t know how this will all turn out, but I do know that, regardless of who is elected, we are careening towards a more uncertain future than anytime in at least the last 75 years. “A republic if you can keep it” was Ben Franklin’s response to a reporter asking what he thought that first Constitutional Convention had created.
This feels like an “if you can keep it moment” doesn’t it?