This really has been the year from hell.
Yesterday, I wrote that this year’s election will be an inflection point for America. That observation became infinitely more acute with the news that Ruth Bader Ginsberg had died. Mitch McConnell didn’t even wait for her body to cool before announcing that he would abandon his invented (Trumped-up) position that Justices shouldn’t be replaced during the last year of a presidential term, and would move quickly to replace her with yet another “conservative” Justice.
The quotation marks around conservative are intentional, because what McConnell and his GOP ilk are hell-bent on “conserving” is white Christian male privilege. They certainly aren’t interested in extending or conserving the values embedded in the Constitution.
As I sat down to write this, I thought about a line that Mayor Pete often used during the primaries: “I’m mindful every day that my marriage exists by the grace of one vote on our Supreme Court.” That observation about the importance of the Court isn’t limited to the ruling about same-sex marriage. Women who are able to exercise control over their own reproduction, people in interracial marriages, people who can get health insurance despite having pre-existing conditions–the list of the very concrete ways in which Supreme Court decisions affect all of us is long.
Self-styled “conservatives” like to insist that they are originalists. But the real originalists are those like the indomitable RBG, who are faithful to the values the Bill of Rights was intended to protect. An originalism that insists on limiting the application of those protections to the world inhabited by the Founders would be unworkable (which is why self-proclaimed originalists like Scalia frequently departed from them.) True originalism requires that we look at the values the Founders were trying to protect–our ability to communicate free of government control, freedom from state-imposed religious observance (impelled by respect for the integrity of the individual conscience), our right to “due process of law” and other rights of self-determination. To be a true originalist requires continuing to protect those values and expand their application in a world the Founders could never have envisioned.
Ruth Bader Ginsberg was a champion of that genuine “originalism.”
So–now we face another hugely consequential “inflection point.” The moral pygmies who obey McConnell will move to replace her with yet another tool of reaction. I was briefly heartened to hear that four Senators (Murkowsky, Collins , Grassley and Sasse) have pledged not to vote for a replacement until after the inauguration; it is likely that Romney will take that same position. If those pledges hold, it’s very good news, but I’m not holding my breath.
Speaking of ifs:
If McConnell succeeds, and if the Democrats take the White House and the Senate, they absolutely must expand the number of Justices on the Court.
That expansion, and a number of other court reforms have been advocated by legal and judicial scholars for several years–not just during our Trump/McConnell nightmare. The reforms should be crafted with one overriding purpose: to remove the judicial system from partisan politics–from being seen as a “prize” to be co-opted by whichever party wins an election– and return it to its intended purpose of dispassionately interpreting the law. As Jill Lepore recently warned, the Court is in danger of becoming an instrument of the executive instead of a check against it.
Judges will always have their own beliefs, and will always bring those beliefs to their jobs. There will always be Justices with whom we disagree. If the people we elevate to the bench are the best and brightest, however, those disagreements will be principled. McConnell has packed the federal bench with partisan hacks and puppets, many of whom the ABA has found to be unqualified–not just mediocre, but unfit.
Ruth Bader Ginsberg became an icon because she was so superbly qualified, so intellectually powerful, and so obviously a person who exhibited decency, integrity and civility.
If she is replaced with yet another partisan hack, all bets are off.