• Sat. Dec 5th, 2020

Who Will Replace Ruth Bader Ginsburg? McConnell Vows Vote

WASHINGTON — The death of Justice Ruth Bader Ginsburg on Friday instantly upended the nation’s politics in the middle of an already bitter campaign, giving President Trump an opportunity to try to install a third member of the Supreme Court with just weeks before an election that polls show he is currently losing.

The White House had already made quiet preparations in the days before Justice Ginsburg’s death to advance a nominee without waiting for voters to decide whether to give Mr. Trump another four years. Senator Mitch McConnell, Republican of Kentucky and the majority leader, vowed Friday night to hold a vote on a Trump nominee but would not say whether he would try to rush it through before the vote on Nov. 3 in what would surely be a titanic partisan battle.

The sudden vacancy on the court abruptly transformed the presidential campaign and underscored the stakes of the contest between Mr. Trump and former Vice President Joseph R. Biden Jr., his Democratic challenger. It also bolstered Mr. Trump’s effort to shift the subject away from his handling of the coronavirus pandemic and remind Republicans why it matters whether he wins or not, while also potentially galvanizing Democrats who fear a change in the balance of power on the Supreme Court.

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The Radical Project of Ruth Bader Ginsburg

Justice Ruth Bader Ginsburg, the Supreme Court’s feminist icon, not only changed the law, she also transformed the roles of men and women in society, according to Linda Greenhouse, contributing writer and former Supreme Court Correspondent for The Times.

“I surely would not be in this room today without the determined efforts of men and women who kept dreams alive, dreams of equal citizenship.” Ruth Bader Ginsburg was the Supreme Court’s feminist icon. Small, soft-spoken, yet fiercely determined, she was an unstoppable force who transformed the law and defied social conventions. “To her fans she’s known as Notorious R.B.G.” Singing: “Supreme Court’s a boys club. She holds it down, no cares given. Who else got six movies about ’em and still livin’?” Ginsburg was hailed as a crusader for women’s rights. Chanting: “D-I-S-S-E-N-T. We’re Notorious R.B.G.!” But her legal legacy was even more sweeping. “The project she brought to the Supreme Court first as the leading women’s rights lawyer of her day, and then as a justice for all those years, I actually think has been kind of misunderstood. She had a really radical project to erase the functional difference between men and women in society. She wanted to make it clear that there should be no such thing as women’s work and men’s work.” “Mr. Chief Justice, and may it please the court.” In fact, in many of the landmark cases Ginsburg argued before the Supreme Court as a young lawyer for the A.C.L.U., her clients were often men. One key case involved a man from New Jersey, whose wife died during childbirth. “Stephen Wiesenfeld’s case concerns the entitlement —” He wanted to work less and stay home with his son, but found out only widows, not widowers, were eligible for Social Security payments. “Ruth Ginsburg went to court on his behalf and said that law, that distinction between mothers and fathers incorporates a stereotyped assumption of what women do and what men do in the family, and is unconstitutional.” “Laws of this quality help to keep women not on a pedestal, but in a cage.” “She won. And that was the kind of case that she brought. And it was really very significant in the march toward the court establishing a jurisprudence of sex equality.” What inspired Ginsburg to take on such a bold project, and there was little sign of anything radical in the beginning. “Ruth Bader Ginsburg grew up in Brooklyn in a lower middle-class family. When she was in high school, she was a twirler. You know, a cheerleader with a baton. She was known as Kiki Bader. And she played a very traditional female role in her high school.” Ginsburg’s mother, who’d been a star student until she was forced to drop out of school to put her brother through college, had big ambitions for her daughter. But the day before Ruth’s high school graduation, her mother died of cancer. It was that shattering loss, Ginsburg said many years later, that instilled in her the determination to live a life her mother could have only dreamed about. “I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve, and daughters are cherished as much as sons.” The other pivotal turn in Ginsburg’s path came during college. She earned a scholarship to Cornell, where she met a jovial sophomore who became the love of her life. “He was the first boy I ever knew who cared that I had a brain.” Theirs was not a typical 1950s marriage, but an equal partnership. “Her husband, Marty, was a fabulous cook, and she was a terrible cook. And Marty did all the cooking.” “In the historic Harvard Yard, you will see your classmates, men from every section of the country.” A year after Marty enrolled at Harvard Law School, Ruth followed, one of only nine women in a class of more than 550, with a new baby girl in tow. “During their time in law school, Marty became very sick. He had cancer. And she basically took all the notes for him and made it possible for him to graduate on time, while in fact, raising their baby and being a law student herself. Marty recovered and their relationship was very central to her work and her understanding of how it was possible to organize society.” This understanding turned into a mission after law school, when Ginsburg took on a legal study in Sweden where feminism was on the rise. “Sweden, where everything and everyone works.” Swedish women weren’t choosing between careers and family, and they inspired the young lawyer. When Ginsburg returned to the U.S., she launched what would become her radical project. As a law professor and leader of the A.C.L.U. Women’s Rights Project, she took on groundbreaking cases to build constitutional protections against gender discrimination. There was a lot of speculation about why a lawyer hailed as a Thurgood Marshall of women’s rights was representing so many men. “People looking back on that had thought, well, she was kind of trying to sweet talk the court. She was trying to give the court cases and plaintiffs that wouldn’t get those nine old guys very upset and kind of, you know, sneak in a doctrine of sex discrimination. And actually, that’s not accurate. She happened to have male clients because they were making claims that were traditionally, were women’s claims. And she wanted to just shake up the preconceived notions when it came to raising families and providing for them and working in the economy. Everybody should be on equal footing.” The legal crusade quickly unleashed profound changes in the law and daily life, but Ginsburg’s own rise to the federal bench took decades, and a lot of lobbying by her husband, a prominent tax attorney, with key old boys club connections. After getting passed over three times, President Carter nominated Ginsburg to be a federal judge in 1980. “The framers had in mind as the way to protect individual rights and liberty.” People were surprised that the A.C.L.U. activist turned out to be a very moderate judge, a centrist who often sided with conservatives, praised judicial restraint, and slammed Roe v. Wade for going too far, too fast. “I am proud to nominate for associate justice of the Supreme Court, Judge Ruth Bader Ginsburg.” Some feminist leaders were concerned when President Clinton tapped Ginsburg for the High Court. “She will be able to be a force for consensus building on the Supreme Court.” But Justice Ginsburg quickly pleased supporters and skeptics alike with her opinions in landmark cases, like the Virginia Military Academy. “May it please the court. V.M.I., the Virginia Military Institute, was established by the Commonwealth of Virginia in 1839.” “V.M.I. was age-old military academy run by the state of Virginia, was men only.” “Stand! Attention!” “It emphasizes competition. It emphasizes standing up to stress. It emphasizes the development of strong character in the face of adversity.” “The question was, did it violate the Constitution to bar women from this school that was entre into the political establishment of the state of Virginia.” Justice Ginsburg believed that omitting women was a constitutional violation. And she ultimately convinced all but one justice, Scalia, to take her position. “The opinion of the court in two cases, the United States against Virginia, will be announced by Justice Ginsburg.” “State actors may not close entrance gates based on fixed notions concerning the roles and abilities of males and females.” “Women will now be walking on the campus of the Virginia Military Institute.” “I think she would say it was the case she was happiest about in her tenure on the court.” “V.M.I. superintendent promises that female cadets will be treated the same as male cadets.” “She used an analysis that increased the level of scrutiny that courts in the future have to give to claims of sex discrimination. I think she found that an extremely satisfying outcome.” Ginsburg’s opinions helped solidify the constitutional protections she’d fought so hard to establish decades earlier. And her grit helped keep her on the bench through colon cancer, pancreatic cancer and the death of her beloved partner. “Justice Ginsburg, even though her husband died yesterday after a battle with cancer, was on the bench.” Ginsburg battled on through it all, unrelentingly tough, but still a consensus builder. She famously forged friendships with right-leaning justices, including Justice Scalia. “You know, what’s not to like? Except her views of the law, of course.” [laughter] Their shared love for opera actually inspired a composer to write a new one, about them. Singing: “We are different, we are one.” “Do you like how you were portrayed in the opera?” “Oh, yes. Especially in the scene where I rescue Justice Scalia, who is locked in a dark room for excessive dissenting.” [laughter] But in her later years, as the court moved to the right, Ginsburg grew bolder in her dissents. “She was not in a position to control the outcome of events. But she was in a position to stake her claim for what the outcome should have been. And she was very strategic and very powerful in using that opportunity.” The opportunity that made her into a rock star came in 2013, when the court struck down a key part of the Voting Rights Act. “Ginsburg wrote a lengthy, scathing dissent.” “She was pretty candid in her displeasure with the court’s decision.” “Hubris, pride, is a fit word for today’s demolition of the Voting Rights Act.” Ginsburg’s fiery dissent inspired law students to lay her words to a beat and turn the 80-year-old justice into the Notorious R.B.G. Singing: “Now I’m in the limelight, because I decide right, court has moved right, but my dissents get cites.” Suddenly, Ginsburg went viral. Children’s books to bumper stickers. Halloween costumes to a Hollywood biopic. “What did you say your name was?” “Ruth Bader Ginsburg.” Even her fitness trainer was a sensation. “Justice is blind, but you know man meat when you see it.” When asked about retirement plans, Ginsburg balked. “There was a senator who announced with great glee that I was going to be dead within six months. That senator, whose name I’ve forgotten, is now himself dead.” [laughter] Ginsburg’s stardom only grew after she criticized then-candidate Donald Trump during the 2016 presidential race. “Ginsburg said, ‘I can’t imagine what the country would be with Donald Trump as our president.’” Ginsburg apologized for her remarks, but instead of retreating, she was emboldened. “As a great man once said, that the true symbol of the United States is not the bald eagle, it is the pendulum. And when the pendulum swings too far in one direction, it will go back.” Notorious R.G.B. became a badge of the Trump resistance, and keeping her on the bench became part of the cause. “Health scare for Supreme Court Justice Ruth Bader Ginsburg.” “News tonight about the health scare for Supreme Court Justice —” “Ruth Bader Ginsburg, she was hospitalized.” “And those ribs you busted?” “Almost repaired.” After all the spills, surgeries and bouts with cancer, what was it that kept her going? Ginsburg said it was her job on the bench, which she still found exhilarating. But perhaps most of all, it was her radical project, which Ginsburg said was still far from complete. “People ask me, ‘When will you be satisfied with the number of women on the court?’ When they are nine.”

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Justice Ruth Bader Ginsburg, the Supreme Court’s feminist icon, not only changed the law, she also transformed the roles of men and women in society, according to Linda Greenhouse, contributing writer and former Supreme Court Correspondent for The Times.CreditCredit…Todd Heisler/The New York Times

The justice’s death presents a major challenge to Mr. McConnell, who blocked President Barack Obama from filling a vacancy on the bench in 2016 on the grounds that it should wait until after voters decided on a new president. That move rallied conservative support for Mr. Trump in the election and, after his victory, allowed him to put Justice Neil M. Gorsuch on the court.

Despite that precedent, Mr. McConnell has said that in case of an opening this year, he would try to push through a Trump nomination before the election, arguing that it was a different situation because this time the president and Senate majority are from the same party. But with just a 53-vote majority, it was not immediately clear whether he could hold his party behind such a move.

“Americans re-elected 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,” Mr. McConnell said in a statement on Friday night. “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 was notably unclear, however, about the timing, not saying explicitly whether he would hold such a vote before the election or wait until a lame-duck session afterward. A Trump administration official said there may not be enough time on the calendar to vote on a confirmation before the election.

Mr. McConnell sought to stave off defections in a letter later in the evening to fellow Republican senators, imploring them not to take a position until meeting with him in Washington. “I urge you all to keep your powder dry,” he wrote. “This is not the time to prematurely lock yourselves into a position you may later regret.”

Several members of Mr. McConnell’s caucus face tough election contests and might balk at seeming to rush a nominee through in such highly partisan conditions. Mr. McConnell too faces a vigorous challenge in his home state.

ImageSenator Mitch McConnell, the majority leader, said in a statement on Friday night that “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
Credit…Doug Mills/The New York Times

Senator Susan Collins of Maine, the most endangered Republican incumbent, told The New York Times this month that she would not favor voting on a new justice in October.

“I think that’s too close,” she said. “I really do.”

Senator Lisa Murkowski of Alaska told an interviewer on Friday shortly before the announcement of Justice Ginsburg’s death that she opposed confirming a new justice before Nov. 3. “I would not vote to confirm a Supreme Court nominee,” she said. “We are 50 some days away from an election.”

Senator Lindsey Graham of South Carolina, the chairman of the Senate Judiciary Committee, which would consider any nominee, said in 2018 that if an opening occurred in the last year of Mr. Trump’s term, “we’ll wait to the next election,” but then hedged in July, telling CNN that “we’d have to see.” In a statement issued Friday night mourning Justice Ginsburg, Mr. Graham, who is in a competitive race of his own, made no mention of when to fill the vacancy.

Senator Charles E. Grassley of Iowa, who was previously the judiciary panel’s chairman, likewise said in 2018 that if there were a vacancy in 2020, he would not bring a nomination before his committee until after the election if he were still in charge. But he has surrendered his gavel to Mr. Graham, and he did not say on Friday night how he would vote as an individual senator. Nor did Senator Mitt Romney of Utah, considered another possible defector.

Democrats immediately said they would fiercely resist any effort to confirm a justice before Inauguration Day, warning that Republicans should follow their own precedent from 2016.

“They must exhibit a shred of integrity and recognize that abandoning their word now, and breaking all precedents by ramming a nominee through — most likely after the election — would cause the nation tremendous pain,” said Senator Patrick J. Leahy, Democrat of Vermont.

Senator Chuck Schumer of New York, the Democratic leader, posted a Twitter message repeating Mr. McConnell’s own words from 2016: “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.”

No one understood the broader political consequences of her death better than Justice Ginsburg, who battled through one ailment after another in hopes of hanging onto her seat until after the election. Just days before her death, NPR reported, she dictated this statement to her granddaughter, Clara Spera: “My most fervent wish is that I will not be replaced until a new president is installed.”

On the campaign trail in recent days, Mr. Trump has stressed the possibility that he could name more members to the court, rolling out a list of about 40 possible candidates he said he would consider. He was onstage on Friday night at a rally in Minnesota when news of Justice Ginsburg’s death arrived and, not aware of what had happened, told the crowd that he planned to name a conservative if given the opportunity.

In describing his potential nominees, he specifically named Senator Ted Cruz, Republican of Texas, joking that he would be unanimously confirmed because Mr. Cruz is so widely disliked by his colleagues that they would love to see him go.

“I have to have somebody that we’re going to make sure we get approved,” the president said. “The only one I can think of is Ted because he’s going to get 50 Republican votes and he’s going to get 50 Democrat votes — they’ll do anything to get him out of the Senate.”

Later in the rally, Mr. Trump returned to the theme, noting that the next president could appoint as many as four justices. In the crowd, someone shouted, “Ginsburg is dead,” but it did not appear that the president heard.

After the rally, aides spoke in his ear as he walked to Air Force One, but when reporters asked about Justice Ginsburg’s passing, he indicated surprise. “She just died?” he said. “Wow. I didn’t know that. You’re telling me now for the first time. She led an amazing life. What else can you say? She was an amazing woman, whether you agreed or not. She was an amazing woman who led an amazing life. I’m actually sorry to hear that.” He made no comment on a replacement and took no questions.

Mr. Biden learned on a flight home from a campaign stop in Minnesota and likewise praised Justice Ginsburg before addressing the looming fight over her replacement.

“The voters should pick the president and the president should pick the justice for the Senate to consider,” he said. “This was the position the Republican Senate took in 2016 when there were almost 10 months to go before the election. That’s the position that the United States Senate must take today, and the election’s only 46 days off.”

Mr. Obama weighed in, too, issuing a written statement saying that four years ago Republicans “invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in” and that basic fairness dictated that “we apply rules with consistency, and not based on what’s convenient or advantageous in the moment.”

Mr. Cruz has already said he would not be interested in a seat on the court, and administration officials indicated they had other choices in mind. The broader list, they said, has been narrowed down to a much shorter one that includes at least one woman. Judge Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit in Chicago, a favorite of conservatives, has often been mentioned by Mr. Trump’s advisers in the past.

Others on the list who have been on Mr. Trump’s previous rosters of candidates include Judges Thomas M. Hardiman of the Third Circuit, in Philadelphia, and William H. Pryor Jr. of the 11th Circuit, in Atlanta. The president also cited two other Republican senators, Tom Cotton of Arkansas and Josh Hawley of Missouri, as well as his former solicitor general, Noel J. Francisco.

White House advisers privately described Justice Ginsburg’s death as a significant boost for Mr. Trump’s re-election chances. One person familiar with White House planning said that the new nominee would be announced sooner rather than later, and that the White House hoped that Mr. McConnell would move forward with a vote. The president is likely to meet again with those on his short list in the coming days, the person familiar with the planning said.

Democrats argued that the open seat would rally their own supporters as well, but it was not clear it would make a major difference because they are already motivated to defeat Mr. Trump for other reasons.

“I don’t know how much angrier the left can get,” said Jennifer Palmieri, the communications director for Hillary Clinton’s 2016 campaign. She said that Democrats would be animated by the turn of events, and that if Mr. McConnell were to go ahead before the election to move the nomination through, it would cost Republicans the Senate.

Hundreds of admirers of Justice Ginsburg made their way to the Supreme Court on Friday night, holding candles, singing “Amazing Grace” and chanting her initials: “R.B.G., R.B.G., R.B.G.” Flowers accumulated on the court steps, while dozens of people sat silently nearby.

“She stood up for me, and she stood up for you,” said Molly Gilligan of Arlington, Va. “This is a devastating moment, but she gave us a lot to celebrate, as well.”

On the steps closer to the street, people laid signs with some of Justice Ginsburg’s most memorable quotes. But the conversation was never far away from what comes next. “Honor her wish,” the crowd chanted at one point.

“I think it’s tragic that the first thought that a lot of people had was to think about what is the impact on the upcoming elections,” said Massiel Sepulveda of Washington, who joined the mourners at the court. “We can’t even properly mourn a woman who, in her own right, was inspiring for many, who broke down barriers, who set important precedents for women all across this country and across the world.”

Peter Baker reported from Washington, and Maggie Haberman from New York. Adam Liptak and Zach Montague contributed reporting from Washington, and Michael Crowley from Bemidji, Minn.