Ruth Bader Ginsburg was a champion against sex discrimination, but what made her application of the law so compelling was her equal application — if there could be no government-funded military school for only men, then there could be no government-funded nursing school for only women. Some of the early cases she won as an ACLU attorney before the U.S. Supreme Court determined that if a woman should get widower benefits for a working spouse, then a man should too; and if a woman was eligible for housing as a spouse in the military then a husband must be eligible too.
And Ginsburg lived long enough to watch the seeds of change she began sowing as a young woman grow into a sustaining forest for the next generations.
Her iconic image — scowl and lacey “dissent” collar gazing resolutely over her black robe — graces millennials’ tote bags, t-shirts, and bumper stickers for a reason. In a country where the highest glass ceiling for women hasn’t yet been shattered, Ginsburg sat high on a bench where only four of the past 114 justices have been women.
For so many women who have been able to attend the college of their dreams, to pursue careers unashamed of their ambition, to have babies in the process, to not have babies in the process, to voice their opinions and to be heard, Ginsburg was the provider.
When she swore her oath of office she said of her mother: “I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons.”
Ginsburg was far too modest, forgetting that she, in fact, also lived in a time when women’s aspirations were limited and daughters were not always considered equal to their brothers. She was one of nine women at Harvard Law and there were no female faculty her first year. But so extraordinary were her abilities, Ginsburg soared to heights surely her mother could never have imagined.
And once she got there, she fought for others.
Thank you, RBG.
And now, tragically, it is time to fill her seat on the bench. Ginsburg died last week at the age of 87. President Donald Trump has the power to nominate someone immediately; there’s no law or rule preventing him from rushing his pick to the U.S. Senate for confirmation in the six weeks before the Nov. 3 election.
There is, however, the precedent Republicans in the Senate voluntarily set in 2016, about whether lawmakers should even consider such a hasty nomination.
“That is why the next president of the United States should have the opportunity to fill the vacancy on the Supreme Court,” U.S. Sen. Cory Gardner, R-Colorado, explained in a press release on March 16, 2016, a full seven months before the election. “In 1992, even then-Senator Joe Biden stated the Senate should not hold confirmation hearings for a Supreme Court nominee until after that year’s presidential election. Our next election is too soon and the stakes are too high; the American people deserve a role in this process as the next Supreme Court Justice will influence the direction of this country for years to come.”
We argued at the time that no such precedent existed, and that while the Senate was free to consider and deny Merrick Garland’s nomination for the Supreme Court, the legislative body should fulfill its duty and vote.
But Senate Majority Leader Mitch McConnell, like Gardner, was resolute: “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.”
We of course disagreed with McConnell and Gardner then, and we’d disagree with them today, if they weren’t proving to be men without conviction.
Less than 24 hours after Ginsburg’s death, McConnell announced (at the end of an email honoring Ginsburg’s service) that the Senate would consider Trump’s nomination.
And Gardner wrote: “when a president exercises constitutional authority to nominate a judge for the Supreme Court vacancy, the Senate must decide how to best fulfill its constitutional duty of advice and consent.” He pledged to confirm a qualified nominee.
Gardner and McConnell’s unabashed willingness to so quickly dispense with their “voters-should-decide” insistence is astounding. Where was their constitutional duty in 2016? It was an inconvenience easily dispensed with and replaced with pretty talk of giving voters a voice.
Of course, the Senate should consider a nominee on his or her merits. That’s what the Constitution intended, and it’s what this editorial board will do when considering whether to advise Colorado’s senators to vote yes or no on such a confirmation. Perhaps a great legal mind — a woman who grew up in an age more similar to the one Ginsburg described in the Rose Garden — will get the nod from Trump. We’d suggest Allison Eid from Colorado, who Trump appointed to the 10th Circuit Court of Appeals.
But we’ve never argued that such a decision should be in the hands of American voters when it was politically expedient, only to cast voters aside so easily when it’s a political liability.
Such inconsistencies dishonor the legacy of Ginsburg’s equal application of the law.
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Updated Sept. 21, 2020 at 6:02 p.m. This story was updated after Sen. Cory Gardner issued a statement on the confirmation process for the U.S. Supreme Court.
