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Ari Hoffman September 21, 2020

Ruth Bader Ginsburg, a daughter of Brooklyn, fixture in Washington, and no-doubt-about-it entrant into any list of all time greatest American jurist, held on for as long as she could. Like Civil Rights hero John Lewis, her nearly nine decades seemed not nearly enough, and she exits just when we might need her the most.

Just as she was celebrated in life, Ginsburg’s passing unleashed an outpouring of grief unusual for someone whose job was to pen legal opinions. People who had never spent a day in law school and who hope never to spend an hour in court saw in her a champion.

Ari Hoffman Image by Noah Lubin

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Along with the tide of mourning, something agitated and angry was released as well. The country is still reeling from a pandemic that has sealed our borders, claimed 200,000 lives, and devastated the economy. For too many towns, Main Street is another casualty of COVID-19. Hopes that the pall of crisis would restore us to solidarity evaporated over a summer of strife and unrest that only added to the sense that the seams are fraying. All of this chaos is now filtered through the prism of a presidential election where the very nuts and bolts of voting seem increasingly loose and unsteady.

Ginsburg’s passing at this moment has caused another flashpoint for a country that is dizzy with them. Under Constitutional rules, the President is entrusted to nominate a candidate for the Court who then has to be confirmed by the Senate. This process is often the site of titanic partisan clash. Hearings over Robert Bork, Clarence Thomas, and Brett Kavanaugh became required viewing. Four years ago, President Barack Obama nominated Merrick Garland to the Court a full eleven months before elections were held. Garland famously never made it to a vote, tabled by the Republican Senate majority under the guise that it was the people’s vote at the polls and not Senators voting in their chamber who should decide on the next Justice. Eleven months later, Donald Trump won the election, and Garland is the Supreme Court Justice who never was.

And a new standard had been set: The process of selecting Supreme Court Justices should be deferred until after a national election. As Joe Biden put it, “The people should pick a President, and the President should select a successor to Justice Ginsburg.”

Let me be clear: The voters should pick a President, and that President should select a successor to Justice Ginsburg.

— Joe Biden (@JoeBiden) September 19, 2020

Of course, not everyone is holding to the new standard, including the man who set it. Where McConnell once said, “this vacancy should not be filled until we have a new president,” he now insists that a President should rush to fill a vacancy a month before the election. What was good for the goose is no longer good for the gander.

He’s not the only one to do a 180 on the question. Senator Lindsey Graham previously swore that no vacancies would be filled in the last year of Trump’s term. Senator Ron Johnson was similarly clear: “In the politicized atmosphere of an election year, you probably shouldn’t even nominate someone… It’s not fair to the nominee, it’s not fair to the court.”

And yet now, with the tantalizing prospect of adding a sixth conservative Justice before what is increasingly looking like a Biden victory, the rush is on to replace Ginsburg. This is especially true after a Supreme Court term that did not deliver the judicial revolution for which many on the right were yearning. McConnell can afford only four GOP defectors from this court packing scheme, and Susan Collins and Lisa Mukowski have already signaled they will not go along with it.

Americans of good will need to call out this hypocrisy for what it is: a rank exercise of political bad faith that will grievously wound the country. A seat on the highest court is not worth resorting to the lowest rung of utter political shamelessness.

But what if Trump and McConnell have their way?

This is not a moment to lose hope. Ginsburg’s medium was the law, but her message was far larger. We live in a country of laws, but not ones ruled by lawyers. There is no doubt that it matters who dons black robes and sits in marble chambers.

But it matters far more who we elect, and what we say and write, and how we figure out the messy business of living together.

Replacing Ginsburg before the election would be a travesty. Not figuring out how to carry on her legacy would be a tragedy. May her memory be a blessing for our future.

Ari Hoffman is a contributing columnist at the Forward, where he writes about politics and culture. He is an Adjunct Assistant Professor at N.Y.U., and his writing has also appeared in The Wall Street Journal, Tablet Magazine, The New York Observer, and a range of other publications. He holds a doctorate in English Literature from Harvard and a law degree from Stanford.

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