I would never have become a lawyer, millions of women would never have become lawyers — or judges or doctors or businesswomen or full members of American society — had she not had the sheer intellectual firepower and will to convince courts that “protections” for women were a cage, a violation of their humanity and of the equal protection under the law guaranteed by the Constitution.
Her biography is well known: a star law school student whom firms wouldn’t hire after graduation, a beloved law professor who inspired generations of women, a pioneer for women’s rights who attacked the systematic injustices that had become accepted as “the way things are,” a judge and then a Supreme Court justice whose remarkable clarity in writing and withering dissents served as a legal tutorial to the country for nearly three decades, and, ultimately, a pop icon who showed us that women of any age can be powerful and heroic.
Her dissents were prescient. In Shelby County v. Holder, which gutted the preclearance provisions of the Voting Rights Act, she warned, "Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.” Since the ruling, a gusher of policies designed to suppress minority voting flooded covered jurisdictions, just as Ginsburg predicted.
Her legal admonitions were powerful: “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks” (quoting abolitionist Sarah Grimké). “When I’m sometimes asked ‘When will there be enough [women on the Supreme Court]?’ and I say ‘When there are nine,’ people are shocked. But there’d been nine men, and nobody’s ever raised a question about that.” Equally powerful were her personal ones: “Every now and then it helps to be a little deaf. ... That advice has stood me in good stead. Not simply in dealing with my marriage, but in dealing with my colleagues.”
She showed how a diminutive, perfect “lady” could be the most powerful voice in the room or the country. And for Jewish Americans, she remained an exemplar for how her faith’s reverence for justice, mercy and compassion were both consistent with America’s creed and accelerants in the battle to form a “more perfect union.” Her lived experience as an outsider informed her understanding of the barriers that many Americans face, and she never forgot that this country gains far more from the outsiders we welcome to our shores than they from America. She was not merely respected but adored by millions of Americans, a rare feat for any justice. She was a progressive icon but also a monument to the American Dream. She asked, “What is the difference between a bookkeeper in the Garment District and a Supreme Court justice?” The answer: “One generation.”
And here we are, in the country’s most miserable year in at least half a century, facing a presidential election, a president bent on burning down the house of democracy to keep power and a Senate Republican majority for whom hypocrisy is a compliment, not a sin. When President Barack Obama nominated Merrick Garland in March 2016, Senate Majority Leader Mitch McConnell (R-Ky.) shamelessly denied Garland a hearing for months. Now McConnell declares his intent to deliver a floor vote for President Trump’s nominee less than six weeks before the next election (an election Republicans may lose overwhelmingly). His letter to his colleagues, however, reveals he does not yet have the votes to abscond with another Supreme Court seat.
McConnell’s spectacular hypocrisy perfectly encapsulates why Republicans must lose up and down the ballot. They have adopted a mentality in which fairness is for fools and the rules apply only to the other side. It is a mind-set at odds with fairness and the rule of a law, which demands that the rules apply equally regardless of one’s status or identity.
The effort to shame McConnell and the legion of morally vacuous Republicans who dreamed up a rule to deny Garland a vote in 2016 is useless. They are beyond fairness; they scorn democratic norms. They care nothing for intellectual consistency or for the credibility of the Supreme Court. They have been willing to acquit a president obviously guilty of impeachable offenses; they will not be shamed into denying a lame-duck president another Supreme Court justice.
Only a few Republicans in the Senate — Susan Collins (Maine), Lisa Murkowski (Alaska) and perhaps Mitt Romney (Utah) — understand this would devour what is left of comity, fairness and the Senate as a credible institution. But they and other Republicans must understand that the effort to steal another seat would lead to far bigger losses for them and to a fundamental shift in power.
Democrats cannot hope to persuade the unpersuadable or to shame the shameless. Instead, they must explain unequivocally: If the Senate confirms a new justice before the next president is inaugurated, the new Senate and president will by any means necessary obliterate the impact of that move.
If need be, Democrats will expand the Supreme Court and change the lifetime tenure of justices. (Federal judges have lifetime tenure but not guaranteed tenure to a specific seat.) If need be, Democrats will eliminate the legislative filibuster. (Don’t think for a moment that if they show restraint, the Republicans would not eliminate the filibuster the moment they are back in the majority.) If need be, Democrats will admit D.C. and Puerto Rico as states as there is justification for doing so quite apart from the Supreme Court, thereby expanding the Senate to 104 votes.
The vast majority of Republicans are not susceptible to pleas for fairness, but they can be convinced that they will lose this fight to turn the Supreme Court into a right-wing cudgel, unrepresentative in any sense of the country at large. The impact of a single justice will be swallowed by an expanded Supreme Court; the impact of court fights will be reduced by abolishing lifetime Supreme Court tenures. The shape of the Senate will be fundamentally changed to the detriment of a rump party of white supremacists. Do not reason with vulnerable Republican senators on the ballot, rather vow and redouble efforts to beat them. Sens. Cory Gardner, Thom Tillis, Martha McSally, David Perdue, Steve Daines and the rest will further damage any hope of retaining their seats if they vote to confirm. (The “But Gorsuch” crowd is already voting for Trump; the vote to shred the legacy of RGB will be a clarion call for women, liberal and otherwise.)
To that end and to focus our minds and hearts, I would strongly urge a memorial to celebrate Ginsburg’s life be held at Washington National Cathedral in October. Her life, the urgency to protect the integrity of the courts and the commitment to carry on her legacy must be honored. Such an event should serve as inspiration for anti-Trump forces going into the election. (I would also expect mass, peaceful movements on the streets should the Senate actually hold confirmation hearings.)
Democrats and other opponents of Republican authoritarianism must defeat the GOP in November overwhelmingly, win back the White House and the Senate, and be prepared to proceed as promised. Republicans might fill Ginsburg’s seat, but they will lose the court majority in the short and long term.
So we celebrate Ginsburg’s life, we mourn her loss, and we commit to vindicating her ideals.