Diminutive Ruth Bader Ginsburg stood five feet and one inch small but nonetheless belongs to that rare breed of people genuinely worthy of being eulogized as “larger than life”. Her career was remarkable, her achievements formidable, her talents enviable and her discipline, fortitude and ambition all undeniable, but it was the popularity and rock-star status accorded Ginsburg in the twilight of her life that were truly incredible, if not unfathomable.
For American Jews, moreover, Ginsburg was an idol, an icon, a veritable demi-god. The biography of the Brooklyn born daughter of impoverished immigrants who clawed her way up to become the most admired judge in the highest court of the land filled them pride, reflected their cherished ideals and embodied the great American Jewish success story to its fullest. Given the three obstacles that impeded her advance – female, working mother and Jewish woman – many have come to regard Ginsburg as simply the greatest Jew in U.S. history.
And yet, the woman who became a legend in the prime of her life could very well turn out to be even more consequential in her death. With 45 days left before the presidential elections, Ginsburg’s passing is bound to hit the already-contentious election campaign like a bombshell, dominating its agenda, escalating its rhetoric and pushing rival sides to unprecedented confrontation. Given President Donald Trump's current lag in the polls, it could also potentially boost his chances of being elected to a second term.
Trump’s insistence on appointing Ginsburg’s replacement a month and a half before the elections, in stark contrast to the Republican Senate’s yearlong refusal in 2016 to consider Barack Obama’s Supreme Court pick Merrick Garland, is likely to spark bitter conflict between Republicans and Democrats. The intense clash and accompanying media frenzy could overshadow the campaign, shift attention away from acute crises such as the coronavirus and race relations and galvanize reluctant Republican voters to rally behind Trump in order to secure what many view as the party’s overriding priority – ensuring a conservative majority in the U.S. Supreme Court for years to come.
Both scenarios – the appointment of a Trump-picked justice before the elections and the chances that the battle over the appointment could help him get elected – would constitute a tragedy steeped in irony. Ginsburg had refused to resign and was hanging on to dear life in order to frustrate Trump’s designs on the court and to defer the decision on her replacement to his hopefully victorious rival. Her fear of a Trump pick that could remake the Supreme Court was so great and palpable that she took the trouble to convey it, through a granddaughter, as her last dying wish: "My most fervent wish is that I will not be replaced until a new president is installed,” Ginsburg reportedly said.
Four years ago, the renowned Jewish jurist, feminist fighter and prominent Supreme Court dissenter had made no secret of her fears and apprehensions about a Trump presidency. In remarks she later apologized for, but many consider prescient, Ginsburg said Trump was a “faker”. She said Trump “has no consistency about him. He says whatever comes into his head at the moment. He really has an ego.”
She even jokingly referred to her husband’s preferred solution of “going to live in New Zealand,” a prospect that many of her admirers are toying with today as they contemplate the prospect of four more years with Trump.
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Trump responded at the time with typical tweet in which he railed against Ginsburg’s “dumb statements,” adding the kind of vulgar insult he routinely hurls at critics and rivals, especially women: “Her mind is shot – resign.” Trump was far more generous in eulogizing Ginsburg on Friday night, calling her “an amazing woman” in his initial reaction and a “titan of law” in his written statement. But he also made it crystal clear that he would ignore her dying wish and, propriety and precedent notwithstanding, pounce on the opportunity of packing the Supreme Court with a 6-3 conservative majority before the elections.
As usual for him, Trump realized in advance that he would need to bury the hatchet for once, because badmouthing Ginsburg would not play well in public opinion and could hamper his chances of ramming the appointment of her successor through the Senate. Malleable Senate Majority Leader Mitch McConnell, who led the obstruction of Garland’s appointment, quickly announced that he would bring Trump’s nominee to a quick vote in the Senate. But he and Trump may face an uphill battle rustling up the necessary majority.
Four Republican senators – Susan Collins of Maine, Lisa Murkowski of Alaska, Chuck Grassley of Iowa and Lindsey Graham of South Carolina – are on record as opposing a pre-election Supreme Court appointment, at least in theory. Utah’s Mitt Romney is thought likely to join them. And while other Democratic senators elected on November 3 won’t take office until January, the winner of the special elections in Arizona to fill the seat vacated by John McCain could be sworn in immediately, and if it’s Democratic candidate Mark Kelly, whittle down the current Republican majority in the Senate from six to four.
Nonetheless, the battle over Ginsburg’s replacement complements Trump’s efforts in recent weeks to place the future of the courts at the top of his agenda and is likely to dominate it in the weeks that remain before Americans head to the polls. The potential achievement of what conservatives and Republicans have been praying for – total control of the Supreme Court and, by extension, of the U.S. Constitution – could excite Trump’s base and convince wavering voters to support him, despite their misgivings.
The same could be true for Democrats, already outraged by Trump and McConnell’s refusal to bide by their own precedent, although some experts believe that the Democratic base is already close to optimal motivation anyway. Democrats will come under intense pressure from their constituents to prevent a vote on Ginsburg’s replacement in any way possible. Pressure is already mounting on Joe Biden and Democratic senators to explicitly threaten the Republican Party that if they win, they will end the minority-protecting filibuster procedure in the Senate and expand the number of Supreme Court justices from 9 to 11 or 13, and then fill the vacancies with progressive and liberal judges.
Senators and senatorial candidates on both sides are in a quandary. Democratic senators and candidates who ignore their constituents’ “No More Mr. Nice Guy” mood could be punished by combative voters. The same is doubly true on the other side: Susan Collins, for example, is already lagging in Maine because of her support for Brett Kavanaugh’s appointment to the Supreme Court and is likely to lose even more moderate voters if she caves once again to Trump’s pressures. Grassley and Graham, on the other hand, could be abandoned by staunch Trump supporters if they are seen as blocking Trump and the possibility of a conservative court.
In any case, the battle over Ginsburg’s replacement is certain to further inflame an already volatile election campaign and to increase hostility and polarization already plaguing America’s body politic. Ginsburg, for one, would not have flinched away from the fight. She viewed the conservative tilt in the Supreme Court’s decisions with growing alarm. She often boasted of the Hebrew inscription “Tzedek Tzedek Tirdof” which emblazoned her Supreme Court chambers and would likely have implored Biden and Democrats to resist Trump as if their lives depended on it. When it comes to the Supreme Court, she would argue, they certainly do.