Justice Ruth Bader Ginsburg Dies

The death on Friday of Supreme Court Justice Ruth Bader Ginsburg has set off an enormous battle over who will replace her and injected a new element of uncertainty into the bitter presidential race. She died at her home in Washington, D.C., of complications from pancreatic cancer.

Ginsburg, 87, was the second woman to serve on the Supreme Court and was a pioneering advocate for women’s rights for decades before joining the nation’s highest court. She served on the Supreme Court for 27 years, becoming the leader of the Court’s liberal wing in the last decade.

President Trump vowed to fill her vacant seat immediately and said that he would choose a woman.

“We have this obligation, without delay!” Trump tweeted.

Since taking office, Trump has named two justices to the nine-member Court: Neil M. Gorsuch and Brett M. Kavanaugh. If a third Trump nominee is approved by the U.S. Senate to replace Ginsburg, it would all but certainly expand the conservative majority and diminish liberal influence on the Supreme Court, possibly for decades.   

Justice Ginsburg said before her death that her “most fervent wish” was that she not be replaced before a new president took office. Former Vice President Joe Biden, the Democratic nominee for president, said that the winner of the election should choose her successor.

When Justice Antonin Scalia died in February 2016, almost nine months before the election, Senate Majority Leader Mitch McConnell, a Republican, refused to consider President Obama’s nomination of Merrick Garland to fill the empty seat. McConnell said then that the Senate shouldn’t confirm a nominee so close to a presidential election. The president has the authority to nominate Supreme Court justices, but they must be confirmed by the Senate before taking a place on the bench. McConnell’s unwillingness to give Garland a hearing meant that his seat remained empty until President Trump took office and named a new nominee.

“The American people should have a voice in the selection of their next Supreme Court justice,” McConnell said at the time. “Therefore, this vacancy should not be filled until we have a new president.”

But just hours after Ginsburg’s death, and with the presidential election only 46 days away, McConnell vowed to move ahead quickly with approving whomever President Trump nominates to replace her.

“President Trump’s nominee will receive a vote on the floor of the United States Senate,” McConnell said.

Democrats say McConnell’s plan amounts to hypocrisy. They argue he must adhere to the principle he invented: that the Senate shouldn’t fill an open seat in an election year before a new president is sworn in.

“They set this precedent,” said Senator Amy Klobuchar, Democrat of Minnesota, speaking on CNN. “They can’t mess around.”

Republicans control the Senate 53 to 47, and a simple majority vote is all that’s needed now to confirm a Supreme Court nominee. That means that Democrats won’t be able to stop the confirmation process unless four Republican senators decide they won’t support it. (Democrats need four Republican senators to oppose the nomination because, under the Constitution, Vice President Mike Pence, a Republican, would break a tie vote in the Senate.) Over the weekend, two Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska, indicated that they wouldn’t support any nominee before a new president is chosen.

Ginsburg’s death has put enormous new pressure on the two candidates in a presidential race already roiled by a global pandemic and a summer of civil rights protests, raising the prospect of a contentious Senate confirmation battle waged during the campaign. The fight over a replacement is certain to put a host of hot-button issues—from abortion and gay rights to religious liberty and environmental regulation—in the foreground of national politics.

The 2020 election will decide not only who sits in the Oval Office, but also which party controls the Senate. Some of the senators who will face pressure to wait until after the election to confirm a nominee face tough re-election battles themselves.

In terms of the presidential race, it wasn’t clear which side would benefit most from this new campaign issue. Many Republican voters view the appointment of a conservative justice as a critical issue and a strong reason to vote. But Ginsburg’s death and the battle over her replacement may also fire up liberal voters. In the hours after her death, Democrats raised more than $71 million.

Ginsburg was appointed to the Court in 1993 by President Bill Clinton, a Democrat. Over the years, she emerged as a champion of progressive causes.

In 1996, she wrote the Court’s 7-to-1 landmark decision in United States v. Virginia that struck down Virginia Military Institute’s policy of only admitting men. (Justice Clarence Thomas recused himself because his son was a student there at the time.) Ginsburg wrote that “generalizations about ‘the way women are,’ estimates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”

In the past decade, as the Court grew more conservative and Ginsburg was more often in the minority, she became famous for writing passionate dissents.

Perhaps most well-known was her dissent in Shelby County v. Holder, which in 2013 struck down a key component of the Voting Rights Act of 1965. She wrote that the majority had been shortsighted in saying the law was no longer needed. “It is like throwing away your umbrella in a rainstorm,” she wrote, “because you are not getting wet.”

In the days after Ginsburg’s death, political leaders on both sides of the aisle remembered her as a trailblazer and a warrior for justice.

“Our nation has lost a jurist of historic stature,” Chief Justice John G. Roberts Jr. said in a statement released by the Court. “We at the Supreme Court have lost a cherished colleague. Today we mourn but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her—a tireless and resolute champion of justice.”

Hillary Clinton, who was the 2016 Democratic presidential nominee, said on Twitter that Justice Ginsburg had “paved the way for so many women, including me.”

“There will never be another like her,” she added. “Thank you RBG.”

Lindsey Graham, a Republican senator from South Carolina and close ally of President Trump, called Ginsburg “a trailblazer who possessed tremendous passion for her causes.”

“She served with honor and distinction as a member of the Supreme Court,” he said on Twitter. “While I had many differences with her on legal philosophy, I appreciate her service to our nation.”

Outside the Supreme Court building, hundreds of mourners placed flowers and candles to pay tribute to Ginsburg, who had in recent years become a pop-culture icon known to her admirers as “the Notorious R.B.G.,” a nickname derived from the late rapper the Notorious B.I.G., who, like Ginsburg, was born in Brooklyn, New York.

The emotion surrounding Ginsburg’s death was captured during a candlelight vigil outside the Supreme Court on Saturday. With the American flag flying at half-staff in the background, Senator Elizabeth Warren, Democrat of Massachusetts, told the crowd of mourners that they should channel their emotions and fight.

“We are here to grieve, but not to despair,” Warren said. “There is too much at stake.”

With reporting by The New York Times.