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By JTTC

Ruth Bader Ginsburg was a titan of our constitutional republic. Equally titanic were the shoes that she has left to be filled. The magnitude of her impact was not limited to her time served on the Supreme Court of The United States and as a result the scope of her importance far exceeded that of just a justice. As both a lawyer and a justice she expanded and enshrined many of the rights that we as Americans enjoy today. Rights we may have otherwise been denied without her. As a justice appointed with bipartisan near unanimous support, she commanded respect from members of both major political parties. RBG was a testament to the power of bipartisanship but also to the importance of unwavering convictions regardless of the impediments one may face whether it be gender, race, religion or any other circumstance. There are extensive difficulties in selecting someone to take her seat on SCOTUS. Especially given the ever-increasing partisan nature of our domestic politics. Regardless of her successor Bader Ginsburg will never be able to be replaced as she was irreplaceable.

Ruth Bader Ginsburg’s impact on our republic was far larger than her status as a justice on the Supreme Court of the United States. She even became known by some as the “Notorious RBG” inspiring several movies, books, lawyers and activists. Plagued by gender discrimination for decades RBG was not only a Supreme Court Justice but a successful lawyer, civil rights champion, mentor and much more. Even before becoming SCOTUS justice RBG had extensive service in civil rights organizations like the ACLU. Both as a lawyer and as a justice RBG worked to extend the equal protection under the law guaranteed under Amendment XIV Section 1 of the US Constitution to both men and women. Even when her opinion did not coincide with the majority of the court it could affect policy. Her impassioned dissent in the case of Ledbetter v. Goodyear Tire & Rubber Co. where the court ruled against the petitioner based upon a statute of limitations technicality led to subsequent legislation to address that technicality. While many in this country view SCOTUS as divided between right and left, conservative and liberal etc. she was beloved by all of her colleagues and even our usually vitriolic president offered sympathetic remarks when informed of her death. The impact she had on our nation was immense, as is the void that has been left behind. Whomever is to fill the vacant seat on the supreme court has a heavy burden to bear. Not only must this successor be a competent justice, but they must also be capable of inspiring the same respect in the American constitutional system that RBG inspired.

While the place left behind by RBG may seem impossible to fill, a successor must be chosen at some point. The Constitution sets out guidelines for the appointment of a justice to SCOTUS. Specifically in Article II Section 2 of the US Constitution the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties….he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court”. In short this has meant that President nominates a potential Justice and the Senate confirms it with a majority. This process has been sometimes interrupted by a legislative tactic called a filibuster where Senators essentially debate endlessly to prevent a law from being passed. In 1917 then President Woodrow Wilson tired of filibusters hampering his efforts to assist allies in World War I pushed the Senate to allow these debates to be closed if two thirds (66) of the Senators agreed on a vote. This would then be paired down to three fifths (60) in 1975 largely as a result of extensive filibusters by Southern Senators opposed to civil rights legislation. In 2013 a Democratic controlled Senate led by Harry Reid paired this down to 51 votes for all presidential nominees except for SCOTUS. By 2017 this simple majority of 51 was expanded to include SCOTUS in order to appoint Neil Gorsuch. For reference RBG was appointed nearly unanimously to SCOTUS by a vote of 96-3 with 1 abstaining. This continuous eroding of anything other than the barest majority has largely been a result of parties attempting to tip the court in their perceived ideological favor.

Less than 24 hours after RBG’s death Democrat and Republican political leaders were more concerned with expressing how they would use it to their respective political advantages than mourning the loss of a lifelong civil servant. However, the idea of trying to influence SCOTUS to be in line with one political party’s ideology is not remotely new. For over 9 months in 2016 Republican Senators refused to hold a vote on nominee Merrick Garland leaving the court down to 8 justices for over a year. The number of justices on the court has actually changed six times largely for partisan gain. Franklin Roosevelt famously or infamously attempted to pass legislation that would have allowed him to appoint up to 6 new SCOTUS justices who would be more receptive to his administration. While most Americans would prefer to wait until after the election according to a Reuters poll, Republicans in the Senate do have the capacity to push through another nominee. However, doing so may instigate the Democratic party into expanding then packing SCOTUS if they take control of the Senate and White House. There has already been interest in doing this amongst some Democrats despite RBG’s opposition in life to expanding the court. RBG was a stabilizing force in the federal government elected with near unanimous bipartisan support. Without this force SCOTUS could quickly descend into just another branch gridlocked by partisan struggle, where justices are only barely squeezed onto the bench by the slimmest of margins. Not only is the decision of RBG’s successor complicated by political logistics but by the reality that the qualities that she brought to the court and to the nation are irreplaceable.    

The passing of RBG was a dark day for our republic. Regardless of one’s political alignment, RBG was one of the most respected and influential justices in U.S. history. Even normally combative political figures respected her opinions and many with ideologically opposed beliefs such as some of her peers at SCOTUS were her personal friends. Perhaps best known for her extensive efforts to strengthen gender equality in constitutional law she worked to protect these rights first as a lawyer and then finally as a justice on the Supreme Court. She has left behind a position that is difficult if near impossible to fill. Not only has the context of choosing a justice become increasingly partisan but years of partisan erosion have seemingly lowered the bar for what it takes to become a supreme court justice. Without a similarly resolute and capable successor who can pass the Senate with more than just the barest margins, the Supreme Court risks becoming further eroded by partisan infighting. Whether this manifests itself as a rushed justice barely qualifying for appointment or later expanded and packed court remains to be seen. Her successor has a civic duty to approach the job with a similar kind of responsibility and capability as the late justice, whether they do this also remains to be seen. The only thing for certain is that the United States of America is worse off without Ruth Bader Ginsburg and while she may be succeeded as a supreme court justice, she is not capable of being replaced as a civil servant or as a person.

Check out part 1 of this series here.

JTTC is a political writer for La Tonique.