Special Forum: the Death of Ruth Bader Ginsburg

I expect everyone has a lot to say, so here is an RGB dedicated forum.
First, I want to express my condolences to her family and to acknowledge her career and service.
Second, the political implications are impossible to ignore. We are about to find out how big of a hypocrite Mitch McConnell is (spoiler alert: a big one). The only hope I see at the moment are four Republican Senators saying “no.” Murkowski has already made a public statement. I would expect Romney to say no. But who are the other two? Collins? (Ha!) and who else?

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FILED UNDER: Law and the Courts, Open Forum, Supreme Court, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. An Interested Party says:

    Just as Thurgood Marshall was replaced by someone who was vehemently opposed to everything he stood for but who happened to have the same ethnic background, RBG will now be replaced by someone who is vehemently opposed to everything she stood for but who happens to be of the same gender…a 6-3 conservative majority on SCOTUS, won’t that be something…

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  2. Bob@Youngstown says:

    RBG – May you rest in peace. God help us !

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  3. Gustopher says:

    Here’s a thought for you: Trump v. Biden with a deadlocked Supreme Court, and millions of mail-in ballots hanging in the balance.

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  4. Bob@Youngstown says:
  5. Jim Brown 32 says:

    2020… You Raggedy Bitch! DAMN DAMN DAMN!

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  6. inhumans99 says:

    This might be a shocking thing to say, but most people I would like to think will agree with me that Trump is going to get his pick installed on the Supreme Court, even if some Republicans makes some noise it will just delay the inevitable, yes?

    That being said I would propose that we let Trump install his pick on the courts now…almost literally right this moment. I say this after reading a Politico story about very white and very wealthy voters in ritzy enclaves in WI who say that they are one issue voters who will vote for Trump because he spoke out against abortion.

    If the Conservatives get their desire for a SC that will make abortions’ illegal in all 50 states + U.S. Territories, why would they need to keep Trump in office any longer than politically expedient?

    Clearly, a large amount of Trump voters will tolerate a lot from Trump because he stands behind them on the one issue they agree with him on, and I bet they are as transactional as Trump, I will vote for you as long as you can get us a SC that bans abortion…give them what they want and that should incentivize folks to stop being tribal for a second and vote the slug out of office.

    I am willing to bet what I am saying in this post is something that quite a few Republicans have already been thinking about…seeing their grip on D.C. start to slip if they give conservatives what they want…a ban on abortion, but since Trump only listens to himself maybe he will install a Justice promptly and do something that no Democrat has been able to do in several decades…weaken the GOPs power that they had by manipulating the electoral college to make it so some relatively sparsely populated Red States could control the levers of power in D.C..

    If giving Trump the fast track to install a SC Justice could help hasten the GOPs grip on power than the shit eating sandwich some of use would have to eat now might be worth it for the long-term benefit of seeing the GOP end up in the dustbin of history.

    To end on a somewhat positive note, RBG was suffering so I am glad she is now in the arms of Angels and suffering no more…RIP RBG.

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  7. An Interested Party says:

    To end on a somewhat positive note, RBG was suffering so I am glad she is now in the arms of Angels and suffering no more…RIP RBG.

    Humph, I’m sure those who oppose abortion think of her as enabling murder so they certainly don’t think she’ll be in the arms of Angels…

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  8. Jax says:

    @inhumans99: I don’t think that’s how it’s going to go down. He will continue to be “the most useful idiot” for both “one-issue donors/voters” AND Putin, and the rest of us are hosed. The “one-issue donors/voters” will not give up their most useful idiot now that he’s come through for them, there’s many more trillions to siphon off, and lots of hatred to spread around. Gotta keep the peons in their place, don’tcha know.

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  9. Kathy says:

    What’s there to say?

    Justice Ginsburg was one of those rare people who leave the world better than they found it.

    No doubt a successor will be appointed. But only successor, not a replacement. She cannot be replaced.

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  10. Jax says:

    It’s causing me a lot of anger to think of Mitch McConnell chortling in his evil lair right now.

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  11. DrDaveT says:

    Well, we got within 2 months of (sort of) surviving the Trump years.

    Damn.

    Unfortunately, I will not live long enough to see what the history books of 2070 say about Trump, McConnell, Barr, and the rest of the Death of America. It would be only cold comfort even then.

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  12. EddieInCA says:

    I’m going to be the contrarian , and posit that Trump will not be able to get a Supreme Court justice approved before Inauguration Day. I think Romney is a solid no. I think Murkowski is a no. I think Grassley might be a no. Can there be one more?

    I think so.

    Brit Hume. BRIT FREAKING HUME is already asking President Trump to not put the country through this.

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  13. Scott O says:

    @EddieInCA:

    In the immortal words of Aerosmith, dream on.

    I hope you’re right but I’m feeling very pessimistic right now.

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  14. Bob@Youngstown says:

    @Jax:
    What really pisses me off is the mental image of Trump dancing a jig as soon as he heard the news. What a POS.

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  15. Pylon says:

    @EddieInCA: If they can make it to the election, and McSally loses, her replacement can go in right away because it’s a special election.

    I suppose Collins could vote no, as a Hail Mary play to get elected.

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  16. HarvardLaw92 says:

    No words. This one stopped me in my tracks, heartbroken.

    While I didn’t clerk for her, she was always my favorite justice. A judge’s justice in the clarity of her both her opinions and her dissents. A fighter who never stopped righteously thundering away from the bench in pursuit of what she believed. A titan in the history of women’s rights – indeed, for a long time in this country, Ruth was the legal aspect of the women’s rights movement – and a thoroughly decent, honorable woman. While her seat will eventually be filled, there can be no replacing her.

    I try to take comfort in the belief that she’s with Marty once again and she’s no longer suffering in the pain that occupied her later days. It’s small comfort, because I’d selfishly rather have her here. I imagine we all would. Rest In Peace, great lady. You will be missed.

    המקום ינחם אתכם בתוך שאר אבלי ציון וירושלים

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  17. Lets’ break this into two components and some assumptions.

    Assumptions;
    1) McConnell cares about two things: confirming reactionary judges and being Senate Majority Leader — anything else is a means to those ends.
    2) No Democratic Senator would vote for a Trump RBG replacement
    3) McConnell has 3 votes he can afford to lose from his caucus as he only needs 50 Pence
    4) McConnell has more than 3 marginals who need a golden ticket

    From the marginal GOP Senator POV, RBG is not an inverse Scalia. Her replacement is not a partisan/ideological majority flipper, instead her replacement in the next 4 months is a majority expander. This is important but not critical and not long term depending on dynamics to be discussed below.

    A nominee is going to have a paper trail. A Federalist Society nominee (the only kind any GOP President could nominate) is going to have reporters every day of the week for the next seven weeks asking Senators Collins and Murkowski if they will vote for an anti-choice nominee. A Federalist Society nominee will have reporters asking Senators Collins, Gardiner, McSally, Tillis, Ernst, Graham if they want SCOTUS to chuck the entire ACA in the middle of a pandemic without replacement. Those are not good questions to be asked every day. It will motivate GOP voters, but suburban white women who used to vote Republican are now Democrats. It will also infuriate Democratic voters so the bet is that a bunch of Senators who are up for re-election (except Murkowski) and are running behind will have a massive net mobilization advantage for voting for an extremely controversial pick. Murkowski and Romney may have incentives to be institutionalists as they don’t need to kowtow to Trump.

    The upside is that GOP donor money won’t be cut off and base voters might be stoked. That is a real upside, and some of the Senators are true believers who would be willing to walk the plank (much like a lot of Dems from R-leaning districts in 2010 were willing to walk the plank for the ACA to pass)

    Now the Democrats have options. They don’t have great options. The biggest one is that they need to be in a position to win a 51 or 52 seat majority in January so Manchin is not the decider of everything and then they need to credibly threaten that if an RBG replacement is confirmed before 1/20/21, they will be soon confirming four new justices who are all in their forties, compete in elite level triathalons and who have all grandparents still alive and well. The goal is to push the calculus on marginal GOP Senators that if they walk the plank, they are walking it for nothing as their (GOP) desired outcome a 3 seat reactionary majority on SCOTUS will become a -1 seat minority by April.

    Norms were broken with Garland who was about as modest a pick Obama could offer (moderate liberal, older than average, previously Sen. Hatch said was quite confirmable etc). So tit for tat with the end game of either a 999 person court in the near future or a constitutional amendment with a fixed replacement schedule and strong agreement mechanisms to preclude blockades when there is a presidential/Senate mismatch are the outs.

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  18. Modulo Myself says:

    I’m not Jewish, but a friend texted and said in Jewish tradition anyone who dies on Rosh Hashanah becomes a tzaddik–one of great righteousness.

    I want to believe that her death will be a sign pointing the way to something better.

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  19. HarvardLaw92 says:

    @DAVID M Anderson:

    The nominee will almost certainly be Amy Coney Barrett, and McConnell will almost certainly not move on confirmation until after the election.

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  20. HarvardLaw92 says:

    @Modulo Myself:

    That’s part of our tradition, yes. She’d be referred to as tzaddeket (inflected because she was female).

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  21. @HarvardLaw92: Agreed… and does Sen. Collins really want to answer questions about the Honorable Judge Barrett’s thoughts on reproductive rights and the ACA for the next 7 weeks…

    Senator Collins needs a golden ticket to have a chance in hell of surviving. And there aren’t many of those to be given out. Her preferrred option is to make the nomination battle and a name to debate on someone else’s problem.

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  22. HarvardLaw92 says:

    @DAVID M Anderson:

    That, and it would give the Dems the spectre of Roe being overturned to run on. History has demonstrated that the issue is more of a voting motivator for the Democratic base than it is for Republicans, and he has no desire to risk the Senate over a fight he believes, not entirely without merit, that he can win anyway after the election, lame duck or not.

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  23. HarvardLaw92 says:

    I’d also note that Joni Ernst shamelessly sent out a fundraising email targeting the Supreme Court issue mere hours after Ruth’s passing. She could not have been more insensitive or offensive. If this election accomplishes nothing more than removing her foul stench from the Senate, I’ll consider it a positive.

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  24. Teve says:

    @PreetBharara

    God help us

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  25. BugManDan says:

    RIP RBG. Inspiration to my daughters!

    Waiting until after the election is a win-win for Republicans. It might get some out to vote that were not going to, and it might give an excuse to Never-trumpers to hold their nose and push the R button.

    And if they lose the presidency and/or the Senate, they can always push it through before the hand over.

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  26. Jim Brown 32 says:

    Beyond the mourning, this is yet another institutional failure that needs to be addressed.

    There is no reason that RGB should have been an active Justice on the SCOTUS at her age and physical condition. There needs to be more Justices on the court and a mandatory retirement age.

    Biden has work do if the Dems can pull off winning both houses.

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  27. senyordave says:

    @Modulo Myself: I’m not Jewish, but a friend texted and said in Jewish tradition anyone who dies on Rosh Hashanah becomes a tzaddik–one of great righteousness.
    I am Jewish and my dad dies on Yom Kippur. My rabbi said that to me at the time. She basically said it was like a blessing for someone to die on Yom Kippur. I held my tongue and didn’t say that it actually would have been a bigger blessing not to die on Yom Kippur or any day at all.

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  28. de stijl says:

    No!

    No, no, no.

    She was so cool! Notorious RBG… Damnit.

    I am in denial phase.

    If this bunch even think about replacing her now. No.

    No!

    Shenanigans! I declare shenanigans! Release the hounds and the bees!

    They’re gonna to try and ram another one through, aren’t they? Fuckers.

    I hate them so much.

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  29. de stijl says:

    @HarvardLaw92:

    One should not harbor hate, but I hate Joni Ernst. Is “despise” stronger than “hate”? Both, then.

    I have had to endure her stupid ass ads for months now.

    Every one I flick a finger and mute asap.

    What have we become?

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  30. de stijl says:

    If they get another R homer on the SC we are truly fucked.

    Wow!

    I am so pissed and so worried. This is really bad. They’re going to punch a new guy through during lame duck session because they can. Scorched earth. Wow!

    Woke up early to super shitty news.

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  31. de stijl says:

    @DrDaveT:

    We got close. Nearly ran out the clock.

    We are so fucked.

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  32. Franklin says:

    I’m lounging around with friends and family last night, and my sister goes to look something up on her phone and just says, “Shit.”

    It’s not something you hear my sister say. But it was appropriate.

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  33. CSK says:

    @Franklin:
    Your sister’s reaction mirrors that of a lot of people.

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  34. wr says:

    @EddieInCA: I think Chuck Schumer should inform the Republicans in the Senate that if they push this through and then lose the majority (or worse, vice-versa) the Democrats will immediately undo it by adding four new justices. And then they will admit DC and Puerto Rico as states.

    And for the next two years, no Republican who voted to confirm will be allowed to speak on the Senate floor. Not one will be recognized in a single committee hearing. Their parking places will be moved across the city, and they will have to share offices. Or maybe share a single office.

    Not one will be allowed to propose an amendment to any bill. And if they want help for their states, they’d better be prepared to explain to their constituents why it ain’t coming.

    He’s got to make it clear that if they go for this last power grab, he is going to burn them down and salt the earth where they stood.

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  35. wr says:

    @DAVID M Anderson: “Senator Collins needs a golden ticket to have a chance in hell of surviving. And there aren’t many of those to be given out. ”

    I think there’s exactly one. Murkowski and Romney have already said no. That’s two of the three gone.

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  36. Drew says:

    “When there is a vacancy on the SCOTUS, the President is to nominate someone, the Senate is to consider that nomination… There’s no unwritten law that says that it can only be done on off-year. That’s not in the Constitutional text.” Barack Obama

    I’m going to do my job. I’m going to nominate somebody… It’s not as if the Senate calendar is so full that we do not have time to get this done.” Barack Obama

    “I would go forward with a confirmation process as chairman, even a few months before a presidential election, if the nominee were chosen with the advice, and not merely the consent, of the Senate, just as the Constitution requires.” Joe Biden

    A total of 61 SCOTUS justices have been nominated and confirmed to the Supreme Court since the turn of the last century (1900). 70% of these (43 Justices) were confirmed in *under 46 days* (the amount of time remaining until the Nov 3 Presidential election)

    “In another tweet, Trump thanked former Sen. Harry Reid (D-Nev.) for in 2013 abolishing the requirement for presidential appointees receive 60 votes for confirmation. Senate Majority Leader Mitch McConnell (R-Ky.) extended the policy to Supreme Court nominees in 2017.”

    “I won.” Barack Obama

    Payback is a bitch. Its politics. Grow up. And stop whining.

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  37. HarvardLaw92 says:

    @wr:

    They’ll need four to stop confirmation.

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  38. wr says:

    @HarvardLaw92: “They’ll need four to stop confirmation.”

    Right. So — unless my mind is melting away — you take away Murkowski and Romney. Then they need two. Collins gets the golden ticket — that’s three. A second golden ticket gives the Dems the four they need, right?

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  39. HarvardLaw92 says:

    @wr:

    I think mine is possibly melting away as well. It should – I’m just not sure who else in their conference would be willing to stand in front of the train on this one. Off the top of my head I can’t think of anyone, and we can’t be 100% sure that every Dem (Manchin … ) will stand in lockstep opposition.

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  40. An Interested Party says:

    Payback is a bitch. Its politics. Grow up. And stop whining.

    Remember that when the Dems pack SCOTUS…

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  41. William Berry says:

    @Bob@Youngstown: So… let me make sure I have this right: you had an image appear in your mind of Donald Trump dancing a jig over Justice Ginsburg’s passing and call him a POS for it? Do you have any idea how divorced from reality that is?

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