When I woke up and read that Ruth Bader Ginsberg had died, I went on a five-hour bike ride, because otherwise I would have just stayed in my apartment pacing and chanting, “Oh my God” over and over again. Ruth Bader Ginsberg (RBG) was one of my heroes. One of the first women to graduate law school, she graduated at the top of her class at Columbia Law School. After graduation, she had to teach law and practice it pro-bono (for free) for the American Civil Liberties Union because it was difficult for women find jobs as lawyers at that time.
She became my hero during the United States v Windsor case when she stated that having a separate type of marriage that does not confer federal benefits for gay people was “skim milk marriage”. Quote:
“…if we are totally for the States’ decision that there is a marriage between two people, for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave; people—if that set of attributes, one might well ask, What kind of marriage is this?”
So that’s what she meant to me, but I get why someone who is not from the US will struggle to see how big a deal her passing away now is. Here’s a primer to help explain:
What’s the process when there’s a Supreme Court vacancy? When there’s a vacancy, the President gets to nominate a replacement, and it’s the Senate’s job to confirm or reject that potential justice.
If that’s the process, then the vacancy should be filled. Why is this a big deal? The reason this is a big deal is because the process was changed when conservative justice Antonin Scalia died in February 2016. At that time, Senate Majority Leader Mitch McConnell refused to have a hearing on Merrick Garland, Obama’s nominee, because it was an election year. McConnell stated, “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.”
Scalia’s death occurred 269 days before the 2016 election, and McConnell refused to hold a hearing for Garland. Ginsburg’s death is 46 days before the election, and he’s already pushing for one. I’m a data geek, so here’s a spreadsheet of all Supreme Court vacancies that happened in election years:
Basically, the same guy who decided 269 days is too close to an election to hold a hearing also decided that 46 days before an election is perfectly okay. McConnell’s justification this time is because now Republicans control the Senate. It’s good old fashioned BS of course – the real reason is because he wants it that way. It could be anything: it’s a crescent moon, she died on a Friday, etc.
The other reason it’s a big deal is because the trend in US politics over the past thirty years or so is that there is less collaboration/compromise within the legislative branch (the Senate and the House of Representatives), which results in less bills being passed. This means that there is more pressure on the judicial branch (the courts) to resolve disputes and make major decisions: decisions like who becomes president when the election is too close to call (Bush v. Gore, 2000) and whether gay marriage should be legal (United States v Windsor, 2013 and Obergefell v Hodges, 2015). The Supreme Court can strike down legislation like when they struck down a portion of the Voting Rights Act in 2013 (Shelby County v Holder) which led to voter suppression in places like Georgia and Texas or Citizens United v FEC (2010) which radically changed campaign finance reform.
This sleight-of-hand trick where hearings can be held on justices based on who is in control of the Senate erode our democratic norms. Supreme Court justice seats are lifetime appointments. The risk is that one political party can unfairly consolidate power by stacking the judiciary in its favor. If a leader wants to consolidate power, he will always try to control the press because that allows him to control the message, like when media mogul Silvio Berlusconi was Prime Minister of Italy. Controlling the judiciary is also critical because it allows that ruler to enforce his message/rules to maintain control. An example is Poland’s attempt to erode judicial review by lowering the retirement age in order to install loyal judges.
That’s why I’m nervous. One thing’s for sure – the next few months are about to be a massive shitstorm in US politics. But you probably don’t need me to tell you that.
* The title is a play on words from “I can’t live, if living is without you”* by Air Supply. For the record, I’m a pop culture nut, and a child of the 80’s, but not an Air Supply fan.
**Turns out that Harry Nilsson wrote “Without You” in 1972, and Air Supply just covered it. Hat tip to my friend and Dems Abroad colleague Linda for setting the record straight.