More to Handle
“God will not give you more than you can handle”. If you are a believer, then take comfort in that phrase. The losses of John McCain, Elijah Cummings, John Lewis, and last night Ruth Bader Ginsburg seem overwhelming. As we approach the critical turning point of the election in forty-five days, our moral leaders are slipping away. We needed them for this fight, but that’s not to be.
Ruth Bader Ginsburg did everything she could to stay in the fight. Her position in the Supreme Court was critical. The eighty-seven year old suffered through multiple rounds of cancer, trying to survive until 2021. She wanted so much to retire in 2016, with the inauguration of the first woman President, Hillary Clinton. But that too wasn’t to be – so she remained the liberal icon on the Supreme Court, working until the end. Her last words were intentionally written for the world. She told her granddaughter that it was her most fervent wish that her replacement be chosen by the next President in 2021.
Respect
Her incredible power as a legal thinker went far beyond her Supreme Court career. She created whole new theories of the law as it applied to women, and lived the results of those expanded rights. And she fought for the rights of individuals in the Court itself for over twenty-seven years. Like her friend, Antonin Scalia, who was the ultimate conservative lion on the bench until his untimely death in 2016, she was a fierce fighter, and an incredibly complex thinker.
Before politics, we should pause at the passing of this tiny woman, this legal giant. We should honor her lifetime of service to the United States. She was a role model for young women (and men) who saw her example, and wanted to do the same. The Justice even allowed (and enjoyed) becoming a cultural icon – the “Notorious RBG”. She was lovingly lampooned on Saturday Night Live – a singular honor for a Supreme Court Justice.
Many are honoring her now, even conservatives, and even the President. He called Ginsburg a remarkable woman who lived a remarkable life – a rare moment of decency. But there are already many dancing on her un-dug grave. They are salivating over the opportunity to place a conservative on the Court and cement a far-right legal ideology into the third branch of government. It’s unseemly, and perhaps un-American, but it’s our political climate today. This is Mitch McConnell and Bill Barr’s fever dream. And while I could delete the worst of them from my Facebook post honoring Ginsburg last night, we cannot delete them from our political world today.
Existential Fight
All bets are off. This is a fight for the near future of the Court and American Law, though perhaps not the decades that doomsayers on both sides proclaim. It’s simple numbers: there are now three Justices who would be considered “liberal”, and five Justices, members of the Federalist Society, who are “conservatives”. If McConnell and Barr get their way, another extreme conservative will go on the Court, cementing their view.
That result would hamstring whatever a future Democratic President, perhaps Joe Biden next year, would want to accomplish. The Supreme Court would echo the legal thinking of the 1880’s. Everything from the hard earned LGBTQ rights, the Affordable Care Act, Voting Rights and Re-Districting would be at risk. But more than anything else, the fight would be about the right of women to control their own their bodies. The right to choose to have an abortion or not is the issue that makes both conservatives and liberals willing to do whatever it takes to win.
There are lots of political permutations in the competing strategies. The first moves are already clear: President Trump will nominate a candidate in the next two weeks. Mitch McConnell will then have to decide either to try to force the confirmation process before the election, or do it after. There are political imperatives on both sides: before the election McConnell has more leverage over the few Republican Senators who really have the power in their hands to determine the result. Afterwards, if Trump wins, it doesn’t matter.
Political Maneuvers
But McConnell’s expectation may be that Joe Biden will be the next President of the United States, and perhaps Democrats will win control of the Senate. To secure this seat and control the future, the current Republican Senate MUST confirm the nomination before the end of the year. After the election, the Republican Senators who might have lost will have little more to lose by voting for a pro-birth nominee.
And for Democrats, their ultimate test is to gain the help of four Republican Senators, lame duck or remaining in office, to break the McConnell stranglehold. There already is dissension in the Republican caucus, with twenty holding out against any additional Federal COVID relief. One Republican Senator, Lisa Murkowski of Alaska, has already stated that she wouldn’t vote on a nominee before the election.
If Biden does win, then the pressure on remaining Republican Senators will be even greater. Do they “ignore the will of the people” as defined by the election results, or do they let down their conservative allies and let the new President Biden make the choice. Which is more final political suicide?
We saw an ugly “street fight” over the Kavanaugh nomination two years ago. The stakes are even higher now, especially in the middle of a Presidential election, and when thirty-five of the Senate seats are up as well. The Supreme Court nomination will motivate both conservative and liberals to even greater excesses: as if we needed more excess in this campaign year.
Requiesce in Pace Justice Ginsburg: rest after a life well lived, and a fight well fought.
But for us, the living, there will be no rest.
