YOU WERE THE BEST OF US

Two wrongs don't make a right.

Right?

Not quite.

Ruth Bader Ginsburg died this past Friday. In her twenty-seven years on the Supreme Court, forty years as a judge, and sixty years as a lawyer, this waif of a woman -- five feet tall and a mere hundred pounds -- was to the legal battle against discrimination based on sex or gender what Thurgood Marshall had been to the legal battle against discrimination based on race.

Namely, its giant.  

In the 1970s, initially as a law professor and then as the head of the ACLU's Womens Rights Project, she orchestrated a step-by-step approach that had the Supreme Court first  hold (in 1971 in Reed v. Reed) that the equal protection clause barred discrimination based on gender  and then begin to systematically apply that holding to reverse the sterotypical realities embedded in the world in which she had grown up and lived.  One by one, and at her careful urging, they fell -- sex-based discrimination in laws regulating military housing allowances, Social Security survivor benefits, state-regulated drinking ages, and rules on who could opt out of jury service or administer an estate.  

Her approach was as strategic as it was enlightened.  

A number of her clients, the "victims" of gender-based discrimination, were men.  

As were, at that time, all the Justices on the Supreme Court.

In 1980, President Carter appointed her to the federal Circuit Court of Appeals in Washington, DC. In her thirteen years there, she developed a reputation as a measured and cautious jurist. She sought consensus. Colleagues with whom she disagreed were not thought of as  opponents or enemies. To the contrary, she befriended two of the most conservative among them, Robert Bork and Antonin Scalia, and became a lifelong friend of the latter.  

Their families regularly celebrated New Years Eve together. 

And Scalia for his part was smitten.

At a lunch with his own law clerks in the early '90s, he was kiddingly given a conservative's Hobson's choice -- "If you had to spend the rest of your life on a desert island with Harvard Law Professor Laurence Tribe or New York Governor Mario Cuomo," the clerks asked, " which would you choose?"

His reply: "Ruth Bader Ginsburg".  

Professor Steven Calabresi, who clerked for Bork on the DC Circuit Court while she was there, called her "a common law constitutionalist. She thinks the Court should not go too far in any given case."

He was right.  

In a much-reported speech at NYU while an appellate judge, she criticized the Supreme Court's decision in Roe v. Wade, arguing that it was "overly broad" and had "prolonged divisiveness" by "halt[ing] a political process that was moving in a reform direction".  In her view, the Court should have limited itself to holding the Texas statute (which banned abortions in all cases except to save the life of the mother) unconstitutional.  States would then have had to determine whether other regulations  were appropriate, and those that passed would have been challenged in court. She thought incremental evaluation and progress was preferable to Justice Blackman's all at once approach, that it would have allowed the rest of the country to catch up and stopped the Court from getting too far ahead of the public. 

She also thought it would have short-circuited the right to life movement and the rise of judicial fundamentalism.

Was she right?

We'll never know 

The Roe-inspired rise of the evangelical right suggests she was.  The fact, however, that state-based reforms were then being vigorously attacked in all the legislatures where they were moving forward (by, among others,the Catholic hierarchy) suggests she wasn't.   

In 1993, President Clinton nominated her to the Supreme Court.  Because of her reputation as a moderate and her expressed skepticism on Roe, liberals were nervous and conservatives silent.  The Senate confirmed her by a vote of 96-3.  No nomination since has beaten that number.  In her twenty-seven years on the Court, she successfully fought back efforts to curtail abortion rights to the point of non-existence, though the effort was far more successful in the earlier years (when Sandra Day O'Connor, John Paul Stevens, David Souter and Anthony Kennedy were on the Court with her) and today hangs by the merest of threads.  

Meanwhile, she continued to erase the plague of sex discrimination, open the doors to equal justice and equal rights, and preserve Congress’s ability to solve national problems. In her most celebrated early decision, United States v. Virginia, she wrote the 7-1 majority opinion striking down the Virginia Military Institute's males-only admissions policy. The only vote against it was Scalia's, who said the ruling would kill VMI.  It didn't.  In Obergefell v. Hodges, she was part of the Court majority that declared gay marriage a constitutional right.  Fundamentalists predicted that this would kill traditional marriage.  

But it didn't either.  

In Ledbetter v. Goodyear Tire & Rubber Co., her most celebrated later dissent, she upbraided the brethren for running the clock on a claim of wage discrimination where the victim, Lily Ledbetter, was not and could not have even been aware that she had a claim. Her dissent was so persuasive that Congress later amended the statute to cure the Court's ridiculous determination.  And on the Affordable Care Act and voting rights, she was stalwart in rejecting the right wing notion that Congress lacked the authority to legislate (health care) or that the problem had been solved (voting rights). 

After its 1992 decision in Planned Parenthood v. Casey, Supreme Court  jurisprudence on abortion shifted away from Roe's focus on privacy and toward Casey's concern that any regulations not impose an "undue burden" on women.  

The doctrinal  shift was tailor made for Justice Ginsburg.  

As a litigator, she had fought against gender discrimination on the grounds that stereotypical distinctions based on sex violated the equal protection clause. In her later years on the Court, often in dissent, she embraced a version of that same analysis in refusing to approve increasingly burdensome regulations on the legal right to an abortion. In Gonzalez v. Carhart, which upheld a state ban on partial birth abortion that did not include a health exception, she wrote in dissent that "legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman's autonomy to determine her life's course and thus enjoy equal citizenship stature."  She also explained that "the absence of a health exception burdens all women for whom it is relevant" and "the reasoned medical judgments of highly trained doctors" ought not be rejected as "'preferences' motivated by 'mere convenience'".

For Ruth Bader Ginsburg, the issue in the final analysis was who decides.

And with her passing, that issue will assume center stage once again and be debated at multiple levels.  

Here are at least two.

First, and on abortion, the fundamental issue will be, as it has always been, who gets to decide when life begins. Or, put differently, who gets to decide when a person is . . .

A person.

The Roman Catholic hierarchy thinks it gets to decide, as do Biblical fundamentalists within various other sects.  According to them, life begins -- a person exists -- at conception.  

In other words, embryos are people.  

This, however, is not a position notable Church fathers like St. Augustine or St. Thomas Acquinas advocated or accepted.  To the contrary, they thought ensoulment or personhood was organic and developed over time.  Conception was not some sort of magic moment.  But today, this view is among the Catholic Church's best kept secrets. The hierarchy assiduously ignores it and instead claims to have opposed abortion for two millenia.  The problem, however, is that the Church's reason for that opposition has changed dramatically over time.  Early on, it opposed abortion because it viewed the act as a form of birth control, not because it thought the act tantamount to murder or infanticide.  Only later, and only after losing civil political power in Italy and claiming it had to be the determinative moral arbiter for the world's 1.2 billions of Catholics, did it turn -- contra Sts. Augustine and Thomas -- embryos into people.

For their part, American conservatives think state legislators get to decide.  In their minds, if an unelected Supreme Court refuses to respect the wishes of any state legislature on this question, that Court usurps the will of the majority reflected in the votes of its duly elected state representatives. The Court then becomes illegitimate, a counter-majoritarian pariah. The problem with this claim, however, is that the Court in Roe and Casey did not counter or usurp any national majority. In fact, to the contrary, those decisions pretty much reflect the national consensus on abortion. What they do not reflect is the opposition to abortion in states whose local majorities constitute a distinct national minority.

Second, in view of the fact that we are now a mere forty-four days from a presidential election, there is the overriding question of who gets to decide Justice Ginsburg's replacement.

In a normal America, the answer would be self-evident. Under the Constitution, the President gets to nominate a new Justice to fill any vacancy and the Senate gets to advise and consent.   This, however, is not how things work in Mitch McConnell's world.  In his world, Presidents do not get to fill vacancies on the Supreme Court in election years.  Instead, only the next President gets to do so.  No one actually thought this was the rule until February 2016, when Justice Scalia died and McConnell made it clear that his party was not even going to hold a hearing -- let alone allow a vote -- on President Obama's then nominee to replace him, Judge Merrick Garland.

But here we are.

My own view is that McConnell was wrong in 2016, that denying Trump the right to nominate Justice Ginsburg's successor might arguably be wrong in 2020, and that generally speaking two wrongs do not make a right.  

Except when they do.

As they do . . .  

Right now.

To begin, McConnell's rule was always a fiction.  When Scalia died, Obama's term was a little short of a year from being over and the election was ten months away.  It was more than possible to do the customary investigations and hearings that now accompany appointments to the Supreme Court.  It was also not accurate to say (though McConnell and his seconds did) that Justices had not been nominated or confirmed in election years in the so-called modern era.  Supreme Court vacancies were filled in 1916, 1932, 1956 and 1986, all election years.  

So, McConnell was wrong.

More or less categorically (though one could argue that nominations and confirmations in the weeks before an election were more or less non-existent; in fact, in the country's entire history, those have occurred only twice).

Unfortunately, his wrong was not without consequences, both short and long term.

In the short term, McConnell's perversion of history has allowed Donald Trump to fill two vacancies to date and has shifted the balance of power on the Supreme Court.  The addition of a third Trump-appointed conservative will change that institution for decades.  

Trump never should have been put in the position where that was possible. And had McConnell not invented his no-Supreme Court-appointments-in-an-election-year canard, he would not have been.  Garland would have been on the Court when Trump assumed the Presidency and Trump to date only would have been able to fill the single seat vacated when Justice Kennedy later retired.  

But he has picked two, not one, and now wants to fill the Ginsburg seat.

If it can be, that has to be stopped.  

If it can't be, and Trump loses in November, the Democrats have to pass structural reforms that re-set the balance on the Supreme Court.  To date, many such reforms have been proposed and can later be considered.  What the Democrats cannot accept is business as usual.  

McConnell never has.

Nor has Trump.

I'm not worried about my own hypocrisy, or squaring any ethical circles, or engaging in silly debates over whether I actually understand the so-called McConnell rule.  Though Mitch is now (conveniently) saying his rule is not applicable today because it only applies when different parties control the Senate and the Presidency, that is not what he said in 2016.  

Nor am I interested in debating his claim that, since the 1880s, no Supreme Court nominee has ever been confirmed in an election year in which the Senate and the Presidency were controlled by different parties. True or not, the number of times this was even possible is not a remotely large enough sample from which anyone -- let alone a power hungry partisan like McConnell --  should be permitted to deduce or infer a rule. 

In the longer term, McConnell's pas de deux with invented rules and hypocritical reversals is killing the Senate, an institution already on life support.  Savvy critics of anti-democratic or counter-majoritarian threats understand that the Senate is one par excellence. The 53 Republicans who today control that body do not come from states even close to representing majority opinion in the nation as a whole, and the positions they advocate on health care, voting rights, gay rights, abortion, taxes, and judicial appointments are not shared by any national majority.

Sooner or later --  and my bet is sooner rather than later -- America will get sick and tired of minority rule, whether it comes clothed in Presidents who continually lose the popular vote  or in Congresses hamstrung by Senates that over-represent small states.  Trump and McConnell could have healed the wounds these structural possibilities cause by governing from the center, and Trump himself could have done so by checking his insults, ad hominems  and anger  at the door.

Neither has.

In many respects, they represent the worst of us.

So, RIP Ruth Bader Ginsburg.

In a life where brilliance was your alter ego but discrimination your companion, where a law school dean wondered why you were there and judges and law firms would not give you a job, you found and married one of the few guys who was different . . . 

And then made your country different as well.

You were the best of us.