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Ginsburg was supremely principled. McConnell will not honor her dying wish

Robert Reich, professor of public policy | September 22, 2020

People in public life tend to fall into one of two broad categories – those who are motivated by principle, and those motivated by power. Supreme Court Justice Ruth Bader Ginsburg, who died Friday night at the age of 87, exemplified the first.

Side by side portraits of the late Supreme Court JusticeRuth Bader Ginsburg and Sen. Mitch McConnell

When he nominated her in 1993, Bill Clinton called her “the Thurgood Marshall of gender-equality law,” comparing her advocacy and lower-court rulings in pursuit of equal rights for women with the work of the great jurist who advanced the cause of equal rights for Black people. Ginsburg persuaded the Supreme Court that the 14th Amendment’s guarantee of equal protection applied not only to racial discrimination but to sex discrimination as well.

For Ginsburg, principle was everything – not only equal rights, but also the integrity of democracy. Always concerned about the consequences of her actions for the system as a whole, she advised young people to “fight for the things you care about but do it in a way that will lead others to join you.”

Senate Majority Leader Mitch McConnell exemplifies the second category of people in public life. He couldn’t care less about principle. He is motivated entirely by the pursuit of power.

McConnell refused to allow the Senate to vote on President Barack Obama’s nominee to the Supreme Court, Merrick Garland, in March 2016 – almost a year before the end of Obama’s term of office – on the dubious grounds that the “vacancy should not be filled until we have a new president.”

McConnell’s move was a pure power grab. No Senate leader had ever before asserted the right to block a vote on a president’s nominee to the Supreme Court.
McConnell’s “principle” of waiting for a new president disappeared Friday evening, after Ginsburg’s death was announced.

Just weeks before one of the most consequential presidential elections in American history, when absentee voting has already begun in many states (and will start in McConnell’s own state of Kentucky in a few weeks), McConnell announced: “President Trump’s nominee will receive a vote on the floor of the United States Senate.”

This is, after all, the same Mitch McConnell who, soon after Donald Trump was elected, ended the age-old requirement that Supreme Court nominees receive 60 votes to end debate and allow for a confirmation vote, and then, days later, pushed through Trump’s first nominee, Neil Gorsuch.

Ginsburg and McConnell represent the opposite poles of public service today. The distinction doesn’t depend on whether someone is a jurist or legislator – I’ve known many lawmakers who cared more about principle than power, such as the late congressman John Lewis. It depends on values.

Ginsburg refused to play power politics. As she passed her 80th birthday, near the start of Obama’s second term, she dismissed calls for her to retire in order to give Obama plenty of time to name her replacement, saying she planned to stay “as long as I can do the job full steam,” adding “There will be a president after this one, and I’m hopeful that that president will be a fine president.”

She hoped others would also live by principle, including McConnell and Trump. Just days before her death, she said, “My most fervent wish is that I will not be replaced until a new president is installed.”

Her wish will not be honored.

If McConnell cannot muster the Senate votes needed to confirm Trump’s nominee before the election, he’ll probably try to fill the vacancy in the lame-duck session after the election. He’s that shameless.

Not even with Joe Biden president, and control over both the House and Senate, can Democrats do anything about this – except, perhaps, by playing power politics themselves: expanding the size of the court or restructuring it so justices on any given case are drawn from a pool of appellate judges.

The deeper question is which will prevail in public life: McConnell’s power politics or Ginsburg’s dedication to principle?

The problem for America, as for many other democracies at this point in history, is that this is not an even match. Those who fight for power will bend or break rules to give themselves every advantage. Those who fight for principle are at an inherent disadvantage because bending or breaking rules undermines the very ideals they seek to uphold.

Over time, the unbridled pursuit of power wears down democratic institutions, erodes public trust and breeds the sort of cynicism that invites despotism.
The only bulwark is a public that holds power accountable – demanding stronger guardrails against its abuses and voting power-mongers out of office.
Ruth Bader Ginsburg often referred to Justice Louis Brandeis’ famous quote, that “the greatest menace to freedom is an inert people.” Indeed.

Cross-posted from Robert Reich’s blog

Comments to “Ginsburg was supremely principled. McConnell will not honor her dying wish

  1. Hypocrisy abounds on both sides of the isle. We haven’t any lack of reporting about the Republican hypocrisy regarding Obama’s nomination, Merrick Garland. The language is unmistakable and there is hypocrisy on the Republican side. What is implied, but hardly addressed is the equal and opposite Democrat hypocrisy. If they truly felt that the people should decide, did this revelation occur when the Republicans stated this point in 2016? Or is it a 2020 reaction to the 2016 precedent?

    As for the “dying wish” from a justice of the Supreme Court, it was a wish. It does not appear to be guidance for actions to be taken. Perhaps it was an expression of hope for all the things Ginsburg stood for. However, it is not a wish that should be honored for sentimentality. The court continues as it has regardless of the impact that a justice has made on the court. From a NYT article dated July 10, 2016, “Asked if the Senate had an obligation to assess Judge Garland’s qualifications, her (Ginsburg’s) answer was immediate. “That’s their job,” she said. “There’s nothing in the Constitution that says the president stops being president in his last year.”” (https://www.nytimes.com/2016/07/11/us/politics/ruth-bader-ginsburg-no-fan-of-donald-trump-critiques-latest-term.html?referringSource=articleShare)

    So then, what is the point of any continued conversation this dying wish other than to push a narrative? If the Senate had this obligation to assess a Supreme Court nominee in 2016, then it failed miserably in 2016. If that obligation existed in 2016, then it exists in 2020 unless principle is over-ridden by precedence and/or politics. If the principle of letting the people decide was paramount in 2016, then the Senate did their job in 2016 and will fail to do it in 2020 because principle is over-ridden by politics. We can cite politicians for their hypocrisy, but we need to ask ourselves the question about how we felt in 2016. If our positions have changed from 2016, how are we any different than the politicians that spew their contradicting positions only 4 years later?

    Perhaps if we can remember we are all subject to the same character failings and not assume the worse from the other side of the political isle, maybe we can keep the lines of civil communication open.

  2. Prof. Reich, you keep avoiding the greatest fact of life today, it appears that Will and Ariel Durant shall be right about a paramount lesson of history again, unfortunately it involves the decline and fall of our civilization in 2020 because of out of control threats to our democracy, climate changes, pandemics, violence and inequalities. The root cause, again, is that our politicians and intellectuals have totally failed to meet the challenges of change, even though we were supposed to have the greatest democracy and education systems in history, instead, proving we have not evolved enough to overcome the powers of money and power.

  3. RBG is indeed principled, but I think it’s naive to think and expect that Republicans (and Democrats if they held the power in the Senate) would fulfill a wish of a Supreme Court Justice on the opposing side, particularly when so much is at stake. When one talks about principles, there isn’t much of it on the Democratic side as well. I expect bias representation from an Obama-appointee but now playing the faculty role teaching our students, the author should consider presenting an argument that accounts for realities on both side of the aisle.

  4. The Late United States Supreme Court Judge Ruth Bader Ginsberg represented and championed the rights of people in her tenure. The 14th Amendment of the Untied States Constitution granted representation to those of all walks of life — which included women. minorities, people of ancestry from other countries, and people that sought asylum in the United States for a better life. Her professionalism and her integrity would be two unique characteristics in supporting everyone in America. Her diligence until her death was of excellence and of credibility. She never believed in power grabs in order to suit other people. She also maintained the notion of protecting separation of church and state in her tenure on the United States Supreme Court. She also fought for women’s rights in allowing abortions and the right to obtain diversity in reference to affirmative action. There have been many people I have heard in this lifetime; and quite frankly, the Late United States Supreme Court Judge Ruth Bader Ginsberg would be among these people. The people salute her!!
    In contrast, Senate Majority Whip Leader Addison Mitchell McConnell, Jr. embarrassed and disrespected her in the passing of the finest United States Supreme Court Judge in the United States. This ruthless politician was rude, arrogant, selfish, and mean in not paying tribute to her work. He has been nothing more than to rush an appointment of an unknown United States Supreme Court Judge Candidate before the 2020 Presidential Election. This type of stunt would be detrimental and reprehensible to the American people that have not been given a voice in this or in any subsequent manner. The American people would not allow this type of bs in order to fulfill his self-serving agenda; and furthermore, the American people will not allow him to obtain his feat at all. Senator Barbara Boxer is a much better person that represents everyone much more than Senator Mitch McConnell in Congress. The former would fight for everyone in America. The latter would fight for tax cuts to the wealthiest corporations and his millionaires in order for obtaining his ill-gotten gains in America. He has retained no moral compass of recognizing people when they die after many years in the United States Supreme Court. He is only for himself.

  5. OK, you’re totally correct about the politicians, especially McConnell and Trump.

    However, it is our academics that are supposed to be our last line of defense to save our civilization per Will and Ariel Durant’s paramount conclusion in the epic history series The Story of Civilization.

    So how do you explain?:

    University of California Unfairly Admitted 64 Connected Students Over Last Six Years, Audit Finds, Daily Beast 09/22/20

    “The University of California school system has wrongly admitted at least 64 students over the last six years, per a California state auditor’s report. — UC Berkeley admitted 42 unqualified students referred to the admissions office due to their families’ donor histories or staff connections.”

  6. RBG should have been retired months ago because she was unable to perform the essential duties and responsibilities of the job.

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