First Draft

Krewe of Mishigas Float, 2019. Photo by Dr. A.

The news came on a Friday night. Because of the pandemic, most of us were home. It lit up new media and old, social media and anti-social media. Ruth Bader Ginsburg had died at the age of 87.

This frail-looking and petite woman was so mentally and morally tough that some thought she was immortal. I’ve spent a lot of time around people over 80 in the last decade, so I was not surprised. It was a nearly unparalleled act of will for her survive the sort of major illnesses that would have finished off lesser beings. As depicted by the Krewe du Vieux sub-krewe of Mishigas in 2019, Justice Ginsburg was a fighter,

There have been many marvelous tributes to Justice Ginsburg. Here’s a brief list:

• Irin Carmon: The Glorious RBG.
• Nina Totenberg: A 5-Decade-Long Friendship That Began With A Phone Call.
• Dahlia Lithwick: What Ruth Bader Ginsburg Would Want America To Do Now.
• Charlie Pierce: Ruth Bader Ginsburg Knew The Dark Elements In American History Never Die,

Pierce made an apt comparison between Ginsburg and Thurgood Marshall. As a litigator, Ginsburg followed the trail blazed by Marshall and fought to establish important rights for women. Thurgood Marshall, however, was a reluctant judge. He preferred being on the other side of the courtroom. Ruth Bader Ginsburg was just as distinguished a jurist as an advocate. Those two skills rarely coincide. She was a remarkable person who led an exemplary life both personally and professionally. Above all else, she was a fighter.

While I wish that Justice Ginsburg had retired while Barack Obama was still president, her reasons were based on her experience as a Justice. Each generation of Justices learns a different lesson: Bill Brennan and Thurgood Marshall retired when they did because of the negative example set by Hugo Black and Bill Douglas who stayed on the Court too long. Ruth Bader Ginsburg saw her friend and colleague Sandra Day O’Connor regret her retirement to care for a husband who died while she was still on the court. That was a major turning point as her replacement was Samuel Alito who is an unbending member of the conservative bloc whereas O’Connor was the ultimate swing vote.

We’re on the cusp of another turning point with Justice Ginsburg’s death 46 days before the election. Those of us who admire Justice Ginsburg should follow her example, get off the floor, and fight back. I heard despair and defeatism this weekend. That’s a shitty way to honor a tough old bird like RBG, Dahlia Lithwick said it best:

America has lost a warrior, and it’s OK to be crushed. I am flattened. And I will mourn, because she deserves to be mourned. But we are also facing an almighty battle that will rage in the coming weeks, with attempts to fill her seat in an unseemly and grotesque manner. It will be hard and painful, but if you find yourself feeling hopeless and powerless, then you are emphatically doing it wrong. Because if anyone had a right to say “nah,” it was the woman who couldn’t get a job or a clerkship after graduating at the top of her class. But she pushed on, and then she pushed forward. She stepped into the fight of the phenomenal women who paved the path before, and now, well, it’s time to step into her fight and get it finished. I think the Notorious RBG would have peered owlishly out at all of us tonight and asked what the heck we are waiting for. And I think we can probably honor her best by getting to it.

The confirmation battle is joined. The most cynical man in politics has already discarded the rule bearing his name. The Turtle plans to move a Trump nominee through the Senate. I suspect he’ll do the most cynical thing imaginable and hold the vote in the lame duck session. To do otherwise, would doom the only thing that McConnell cares about as much as SCOTUS, his Senate majority.

Senate Judiciary Committee Chairman Lindsey Graham has already flip-flopped on his pledge not to push a nomination through in an election year. Nobody should be surprised. In 2016, Graham called Trump “a kook and a con man” among other ephemeral epithets. Now they’re golfing buddies.

The Democratic minority should announce a concrete and specific Court reform plan. (Don’t call it court packing, that evokes FDR’s failure in 1937-38.)  It should expand the number of Justices to eleven. They should also pledge to abolish the filibuster if a Trump nominee is rammed through. It’s time for it to go.

I saw some despairing tweets that a SCOTUS battle would decide the presidential election in Trump’s favor. Color me skeptical. Conservatives who care about SCOTUS and abortion sold their souls to President* Pennywise long ago. In 2020, it’s more likely to galvanize Democrats. A reminder that the Kavanaugh Mess did NOT turn the 2018 mid-terms in the GOP’s favor. The number that counts is this: 204,122 and counting dead of the novel coronavirus.

Back to Ruth Bader Ginsburg. She was an inspiring figure who will be missed, especially by the young women she inspired to fight the good fight. Women will decide the 2020 election. My hope is that they will be inspired to keep fighting until Democrats recapture the White House and Senate. Vote like the fate of the Republic depends on it. It does.

The last word goes to RBG’s close friend Nina Totenberg with a tweet for the ages:

A Jewish teaching says those who die just before the Jewish new year are the ones God has held back until the last moment bc they were needed most & were the most righteous. And so it was that #RBG died as the sun was setting last night marking the beginning of RoshHashanah

— Nina Totenberg (@NinaTotenberg) September 19, 2020