Ruth Bader Ginsberg (03/15/33-09/18/20) served on the Supreme Court from 1993 (she was confirmed with a vote of 96-3) until she succumbed to complications from pancreatic cancer last week. It is no understatement that this formidable lady was an icon who became the most publicly recognized face on the high court, trailblazer in the fight for women’s rights, gender equality and anchor of SCOTUS’ thinning liberal wing. Hence, a single dedicated blog post highlighting Mrs. Ginsberg’s achievements cannot possibly do her – excuse the pun – justice.
Regrettably, because we are less than two months from an election in a hyper-partisan political climate, more attention is being allocated to the political jockeying around whom and when the late Justice Ginsberg will be replaced on the bench, rather than her achievements on it. However, before we delve into the subject matter surrounding the timing of Ginsberg’s potential replacement, we felt it was appropriate to share but a few of her roles in some landmark cases she presided over during her illustrious career:
• United States v. Virginia, (1996). Ginsberg penned SCOTUS’ opinion that struck down Virginia Military Institute's (VMI) male-only admissions policy because it violated the Equal Protection Clause of the Fourteenth Amendment.
• Olmstead v. L.C., (1999). Ginsburg wrote SCOTUS’ opinion whereby the high court ruled that mental illness is a disability and should therefore be covered under the Americans with Disabilities Act (ADA) of 1990.
• Stenberg v. Carhart, (2000). Ginsberg was a staunch advocate of a woman’s right to choose but showed her malleability when she joined the majority in striking down Nebraska's partial-birth abortion law, rendering the procedure illegal (without consideration for the mother).
• Grutter v. Bollinger, (2003). Ginsberg concurred with the court’s decision upholding Michigan Law School's affirmative action admissions policy.
• Ledbetter v. Goodyear, (2007). Ginsberg dissented from the court’s 5-4 ruling in favor of Goodyear Tire & Rubber in a highly publicized gender discrimination lawsuit. Although defeated, Ginsberg was not to be deterred and called on Congress to reverse the court's decision with legislation. It culminated in the 2009 Lilly Ledbetter Fair Pay Act.
• School District v. Redding, (2009). Ginsberg played an integral role in arguing why the Safford Unified School District violated a middle school students’ 4th Amendment rights when they forced her to strip down to her bra and underpants to search for contraband. Said Ginsberg in one of her many famous quotes, “they have never been a 13-year-old girl.”
In 2016, Senate majority leader Mitch McConnell (R-KY) refused to hold a vote to confirm Merrick Garland, who was Barack Obama’s nominee, to replace Antonin Scalia on the Supreme Court. Said Mr. McConnell at the time:
“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.”
Even though it would be ~9 months until a new president would be elected, McConnell was steadfast in his refusal to bring a vote to the Senate floor. On January 3rd 2017, Mr. Garland’s nomination expired, after 293 days.
Senator McConnell was not alone among his GOP colleagues in making arguments why the process should be delayed. Here is a sampling of comments from 2016:
• Lindsey Graham (R-SC), Chairman of the Judiciary Committee (March 2016): “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, let’s let the next president, whoever it might be, make that nomination, and you could use my words against me and you’d be absolutely right.” Not one to outdo himself, in 2018 he said, “If an opening comes in the last year of President Trump’s term and the primary process has started, we’ll wait to the next election.”
• John Cornyn (R-TX) (March 2016): “At this critical juncture in our nation’s history, Texans and the American people deserve to have a say in the selection of the next lifetime appointment to the Supreme Court. The only way to empower the American people and ensure they have a voice is for the next President to make the nomination to fill this vacancy.”
• Joni Ernst (R-IA) (March 2016): “In the midst of a critical election, the American people deserve to have a say in this important decision that will impact the course of our country for years to come. This is not about any particular nominee; rather this is about giving the American people a voice… We must wait to see what the people say this November, and then our next president will put forward a nominee”
Centrist Susan Collins (R-ME) refused to fall in line with McConnell & Co., and publicly supported moving forward to vote (April 2016), stating: “Chief Judge Garland and I discussed a wide variety of issues, ranging from executive overreach and the separation of powers, to Second Amendment cases, to his judicial philosophy. Judge Garland gave thorough, impressive responses to all of my questions, and I found him to be well informed, thoughtful, and extraordinarily bright. Throughout my time in the Senate, I have always found that whether it is legislation, nominations, or treaties, we are best served by following the regular order. That is why I have called for the Senate to proceed to the next step by holding public hearings.”
At the Quintessential Centrist, we agree(d) with Susan Collins and believe Mr. McConnell should have allowed a vote to confirm (or reject) Merrick Garland to proceed on the Senate floor. Let us be clear, we are not arguing that Garland should have been confirmed (or rejected), only that he deserved a thorough and fair vetting process that would have allowed lawmakers to make that determination.
An (In) Justice Par Deux
In 2016 when the election was ~9 months away, Mitch McConnell continued to justify stonewalling Merrick Garland (playing dirty politics) by arguing that the American people deserved to have their voices heard; therefore, the judiciary committee should wait until after the election to nominate a justice to the SCOTUS.
Fast forward to today. Senator McConnell and most of the GOP led Senate plan to confirm Amy Barrett, President Trump’s nominee, prior to November 3rd (election day). McConnell is justifying this odious, hypocritical about face by taking the old “this time is different” stance.
His new argument is that because in 2016 the Senate was controlled by Republicans and the sitting president was a Democrat vs. the current situation where Republicans hold a majority in the Senate and the sitting President is Republican, they have the people's mandate to proceed.
Sen. McConnell wasted no time pleading his case. The same day Justice Ginsberg died, McConnell stated:
“In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year. By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”
Mr. McConnell is not alone among his GOP colleagues in making arguments why the process should proceed. Here are Senators Graham, Cornyn, and Ernst current points of view:
• Graham (September 2020): “I therefore think it is important that we proceed expeditiously to process any nomination made by President Trump to fill this vacancy.”
• Cornyn (September 2020): “Our friends on the other side of the aisle have tried to compare this to the vacancy in 2016, but the facts were different. At that point, we had a President of one party in his final year in office, and the Senate Majority of another party.”
• Ernst (September 2020): “Once the president puts forward his nominee for the Supreme Court, I will carry out my duty—as a member of the Senate Judiciary Committee—to evaluate the nominee for our nation’s highest court.”
Of course, the real reason(s) for McConnell’s maneuverings on both occasions is politics. Four years ago, McConnell wanted to wait and see if a Republican would be elected President. Today, McConnell wants to proceed in case a Republican (Trump) is defeated. Unfortunately, and especially as it applies to politics, anybody can rationalize anything if a bulls**t-o-meter is used to substantiate their arguments.
With respect to the judiciary branch of government, it is not only the GOP that has shown an exemplary ability to get downright nasty. In fact, in 2013 Senate Majority leader Harry Reid (D-NV) ignited the flames by employing the nuclear option to eliminate the 60-vote filibuster needed for federal judicial appointments.
Democrats came to regret Mr. Reid’s aggressive political jockeying. In 2017 and back in control of the Senate, the GOP returned the favor, one-upped Reid, and employed the nuclear option to end the 60-vote filibuster needed for Supreme Court nominations. Subsequently, Donald Trump nominated Neil Gorsuch and Brett Kavanaugh. Both were confirmed (Gorsuch: 54-45, Kavanaugh 50-48) by simple majority.
Two Wrongs Don’t Make A Right
In the past, TQC has supported both Democrats and Republicans on specific issues. On those occasions where we focus on specific politicians, our analysis is predicated on three important “P’s”: person, policies and principles, and not the party with which they happen to be affiliated.
In our view, four years ago Mitch McConnell abdicated his responsibility to the American people by refusing to allow a vote to confirm (or reject) Merrick Garland. Today Mitch McConnell is doing the exact same thing by allowing a vote to confirm (or reject) Amy Barrett.
Had McConnell permitted Merrick Garland’s nomination to commence, we would argue that not only is he well within his right to move Barrett’s nomination forward, but that he should. President Trump has the legal authority to nominate a candidate for SCOTUS and Amy Barrett is a formidable candidate worthy of review. However, according to Mr. McConnell's (original) logic, any vote to confirm (reject) Amy Barrett should take place after the election.