Ruth Bader Ginsburg: Mourning Her Loss but Fighting for Her Legacy

 

By Maria Raciti.

As a woman who was raised in a family of nine, seven women and two men, I grew up thinking that girls, as Beyoncéso flawlessly puts it, “run the world.” Much to my father and brother’s dismay, the girls truly dominated. We could make the boys disappear with some perfectly-off-pitch singing and overenthusiastic dancing. In other words, we held all the power. It was not until I got older that I realized my family is a bit of an anomaly in this respect. Since the founding of this country, women have had to fight for every miniscule right. And one of the main figures leading this charge was Supreme Court Justice Ruth Bader Ginsburg (RBG).

“Associate Supreme Court Justice Ruth Bader Ginsburg Visits WFU” by WFULawSchool is licensed under CC BY-NC-ND 2.0

Brilliant and empathic, she fought until her last breath for gender equality. She revolutionized our country and impacted so many women’s lives. She taught women, myself included, to go after what we want regardless of who stands in our way. To never accept degradation and insulting female stereotypes. After all, women are a force to be reckoned with, and per RBG’s example, we will continue to remind the world of this fact. Before she passed away, she made one final request: “My most fervent wish is that I not be replaced until a new president is installed.” These words, combined with the imminent presidential election (less than two months away), spurred heated debate regarding the Supreme Court nomination process.

Will America Honor RBG’s Last Request?

According to the United States Senate Majority Leader Mitch McConnell, no, America will not honor RBG’s last request. Just hours after RBG passed, McConnell made clear that the Senate will vote on President Trump’s nominee to replace RBG. For former President Barack Obama, presidential candidate Joe Biden, and many other Americans, this decision reeked of hypocrisy. Why? In 2016, the country faced a very similar predicament. Nine months prior to the 2016 presidential election, Supreme Court Justice Antonin Scalia died. Less than an hour and a half after his death, McConnell issued a statement saying that the Senate should not confirm a replacement for Scalia until after the 2016 election. According to McConnell, “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” With Republicans backing his decision, McConnell succeeded in blocking Obama’s nomination.

As the President’s authority had never been challenged in this way before, this block arguably set a precedent for how the President and Senate should handle nominations when a Supreme Court Justice dies so close to an election. Based on Obama’s tribute to RBG, he believes such a precedent was set:

Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in. A basic principle of the law—and of everyday fairness—is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment. The rule of law, the legitimacy of our courts, the fundamental workings of our democracy all depend on that basic principle. As votes are already being cast in this election, Republican Senators are now called to apply that standard. The questions before the Court now and in the coming years . . . are too consequential to future generations for courts to be filled through anything less than an unimpeachable process.

And it is not just Democrats who feel this way. A number of Republicans, including Republican Senators Susan Collins (ME) and Lisa Murkowski (AK), believe that McConnell set a precedent in 2016, and this precedent must be followed. In Murkowski’s own words, “When Republicans held off Merrick Garland it was because nine months prior to the election was too close, we needed to let people decide. And I agreed to do that . . . If we now say that months prior to the election is OK when nine months was not, that is a double standard and I don’t believe we should do it.” While McConnell continues to assert that this situation is different than the one in 2016—unlike the situation in 2016, where the Republicans controlled the Senate and the Democrats the White House, the Republicans control both branches in 2020—is it really all that different?

This question will ultimately determine whether Trump’s nomination will go through. Although unlikely, if enough Republican Senators disagree with McConnell and refuse to vote to confirm a new justice before the election, McConnell may be thwarted by his own party. Or alternatively, if the vote occurs after the election but before the winner of the presidential election is sworn in (i.e. during a “lame-duck session”), McConnell may face a different challenge, namely the political makeup of the United States Senate. If enough Democratic candidates running for Senator win over their Republican opponents, the Senate’s current Republican majority may shift. And Arizona may actually play a crucial role in this shift.

Arizona’s Stance on the Matter

Shortly after RBG died, Republican Senator Martha McSally (AZ) tweeted her stance on the nomination. Agreeing with McConnell, McSally tweeted, “This US. Senate should vote on President Trump’s next nominee for the U.S. Supreme Court.” While clear in her position, McSally may not be the one voting on the nomination. This November, Arizona is holding a special election for the Arizona Senate race, meaning that, under state law, the winner of this race can be seated as early as November 30th. As such, if the Democratic nominee Mark Kelly wins, which is a real possibility (polls show McSally significantly behind Kelly), Kelly may be the one voting on the President’s nominee.

With all this in mind, the next couple of weeks will be telling. The timing of the vote, in particular, will be key.

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By Maria Raciti.

J.D. Candidate, 2022

Maria Raciti is a 2L at the Sandra Day O’Connor College of Law. Before law school, she earned a Bachelor of Arts in Philosophy, Politics, and the Public, an interdisciplinary academic degree for students interested in promoting the public good though careers in law, policy, or economics. Maria enjoys the finer things in life: ice cream, naps, the Office, and more ice cream.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.