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Ruth Bader Ginsburg: The trailblazing judge whose exit means trouble

And 39 days out from the November 3 poll, a fiercely divided nation is undergoing a fresh wave of partisan angst over its increasingly fragile democracy.

Have judicial nominations always been so rancorously partisan?

For the most part, yes. Ever heard of the phrase “to bork”?

It was coined after the failed Supreme Court nomination of Robert Bork, then a federal judge and one-time solicitor-general in the Nixon administration.

Three decades ago, the campaign to stop him from being promoted to the bench was so hostile that a new verb was born, defined in the Oxford English Dictionary as “to defame or vilify a person systematically”.

An anti-Bork rally in September 1987.

An anti-Bork rally in September 1987. Credit:Reuter-UPI

Part of it was of Bork’s own making: by the time president Ronald Reagan nominated him in 1987, Bork had clocked up a lengthy record of controversial legal opinions that political adversaries could use against him.

Among them was his opposition to a 1965 Supreme Court decision that struck down a state law banning contraceptives for married couples and an article opposing the 1964 civil rights law that required hotels and restaurants to serve people of all races.

But the failed nomination provoked a partisan divide over judicial appointments for years to come, legitimising the ideological “confirmation wars” that have waged over the past few decades.

Note, for example, the outrage from both sides of the aisle over judge Brett Kavanaugh, whose Supreme Court nomination last year was almost derailed due to sexual assault allegations.

After the death of arch-conservative justice Antonin Scalia in February 2016, Senate majority leader Mitch McConnell blocked Barack Obama from nominating Scalia’s replacement, on the basis that a presidential election was in the offing.

Today, it would seem, the same rules don’t apply.

What makes Ginsburg’s death so significant?

For millions of Americans, Ginsburg, who died from pancreatic cancer at the age of 87, was a social justice icon.

She blazed a trail for working mothers, devoted her life to achieving equal constitutional status for all, and led the liberal bloc of the court on such historic decisions as the 2015 ruling in favour of same-sex marriage and the 2013 dissent over the court’s decision to strike down key parts of the Voter Rights Act.

But while the sadness surrounding her death is a potent symbol of her incredible legacy, much of it is also filtered through the prism of what is now at stake.

Even when Ginsburg was on the bench, the Supreme Court was delicately balanced, with four liberals, four hardline conservatives and Chief Justice John Roberts (who is also conservative but is not always guaranteed to vote with his bloc).

The Obama White House welcomes the Supreme Court's ruling legalising same-sex marriage in 2015.

The Obama White House welcomes the Supreme Court’s ruling legalising same-sex marriage in 2015. Credit:AP

Trump and McConnell will move to swiftly fill Ginsburg’s seat with a staunchly conservative woman, giving the Right at least five out of nine votes, or six if you add Roberts. This could significantly shift the ideological balance of the court for a generation on everything from gun reform to immigration to religious freedom.

Women’s reproductive rights could be at risk if the court gets enough votes to overturn or weaken Roe v Wade, the landmark 1973 decision that gave women the constitutional right to have an abortion.

Also at risk is the Affordable Care Act, popularly known as Obamacare. Its supporters fear a move to strike down the act would decrease access to health insurance at a time when Americans desperately need it. Legal disputes over ballots in the 2020 presidential election may also loom large in coming weeks, with Trump already making it clear that he may not accept the final result of voting.

Could any of this have been avoided?

Perhaps. As Ginsburg made her way into America’s cultural consciousness – immortalised on mugs, T-shirts and given the nickname “the Notorious RBG” – she appeared to revel in her ever-growing rock star status.

But after surviving a number of cancer scares over the years, Ginsburg also came under growing pressure to retire so that then-president Barack Obama could appoint a liberal successor.

By 2010, when Ginsburg was 77, some Democrats had suggested she should considering standing aside rather than risk giving Republicans the chance to appoint a conservative justice to the bench should Obama lose the 2012 election.

Obama ended up winning another term, but the pressure continued as Democrats became increasingly concerned they would have one last chance to fill the seat ahead of the 2014 mid-term elections when, as expected, Republicans regained control of the Senate.

Ginsburg, however, shrugged off the calls, saying she planned to stay “as long as I can do the job full steam.” At a time when conventional wisdom suggested Hillary Clinton would likely succeed Obama, she also noted: “There will be a president after this one, and I’m hopeful that that president will be a fine president.”

On the one hand, Ginsburg’s determination to stay was a testament to her love of the law and her refusal to play power politics. On the other, it was a miscalculation about who might end up appointing her successor, and a missed opportunity for the Democrats more broadly.

So what happens now?

Trump’s shortlist includes several women, with judges Amy Coney Barrett, from Vice-President Mike Pence’s home state of Indiana, and Barbara Lagoa, a Cuban-American from the battleground state of Florida, believed to be the frontrunners.


Democrats don’t have a lot of leverage to stop the nomination, particularly given Republican Mitt Romney, a consistent critic of Trump’s, has now declared he’ll support the Senate moving ahead before the election.

However if the Democrats recapture the Senate majority in November, they could end the filibuster rule that requires 60 votes to pass most legislation. Bills could then pass by simple majority – as they do in the House – allowing the party to legislate to place more justices on the Supreme Court.

Bumping up the bench from nine judges to 11 could potentially reduce conservatives’ influence if more liberals were to be appointed.

It’s not ideal – indeed Biden and Ginsburg herself have previously opposed “court packing” – but these are unprecedented times. As Senate minority leader Chuck Schumer said last week: “Nothing is off the table.”

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