The Millennial's Guide to This Historic Moment

The Dissenter's Hope: Ruth Bader Ginsburg and What Comes Next

September 22, 2020 Ty Wycoff Season 1 Episode 5
The Millennial's Guide to This Historic Moment
The Dissenter's Hope: Ruth Bader Ginsburg and What Comes Next
Show Notes Transcript Chapter Markers

Giant of the Supreme Court Justice Ruth Bader Ginsburg passed away last weekend. The Republican Party is pressing forward with filling her seat only weeks before the election, a reversal from the GOP's 2016 position on nominees during an election year.  Between Mitch McConnell, SCOTUS, and the 2020 election, what does this historic moment mean for the future of the country?

Episode Transcript

Key Topics:

  • Justice Ruth Bader Ginsburg’s Legacy 0:15
  • The Importance of Dissent on SCOTUS 1:08
  • The Politics of the Supreme Court: 8 Possibilities, Reminders, and Things to Watch Out For  3:21
  • What Will Likely Happen 10:02
  • What Should Happen 10:18
  • A Word For Those Who Are Afraid 11:26

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Over the weekend, things on the political landscape took a turn. So I decided not to release a new episode that I was working on until later this week - that episode will come out on Thursday -  and instead address these recent events. 

Justice Ruth Bader Ginsburg’s Legacy 0:15
On Friday evening, Supreme Court Justice Ruth Bader Ginsburg succumbed to pancreatic cancer. This is difficult; Justice Ginsburg was a giant of the Supreme Court and she was a woman of historic proportions. You've probably heard the word "trailblazer" a lot in the news, and that's because it's a good word to use. She had spent her entire career advancing the cause for women's rights and gender equality in many different capacities. As a lawyer, she argued monumental cases before the Supreme Court; she served as a judge on the US Court of Appeals for the DC circuit; and of course, as an Associate Justice on the Supreme Court itself.

She spoke truth to power, even in her court issued opinions and especially so, in the last several years. And she became particularly known, in these last several years, for dissents.

The Importance of Dissent on SCOTUS 1:08
Dissenting opinions on the Supreme Court are important. Though it might seem kind of useless because the majority of the court has already decided on a given case, the value of dissent is exactly that- to speak truth to power. It's so that even in some of the most egregious cases, where the court can error and its ruling, there's voice given to dissenters for the historical record. Dissenting opinions are often cited later on if the court changes its position. We can think of really important and famous dissenting opinions such as Justice Benjamin Curtis' dissenting opinion in the Dred Scott v. Sanford case where the majority determined that persons of African descent either, slave or free, were not US citizens. As Justice Ginsburg said in an interview with NPR in 2002:

"Dissent speaks to a future age. It's not simply to say 'my colleagues are wrong, and I would do it this way,' but the greatest dissents do become court opinions. And gradually over time, their views become the dominant view. So that's the dissenters hope: that they are writing not for today, but for tomorrow."

One of my favorite things about Justice Ginsburg was her love for collars that she'd wear with her court robe. She had a collection of collars from around the world. In an interview with Katie Couric- I think it was 2015- she explained that she wore different collars for different events. She had a majority-opinion collar, and even had a dissent-collar.

When Couric asked her why that was her dissent collar, she just said "Because it looks fitting for dissent."

I would end up doing a few episodes if we were going to focus on how iconic Justice Ginsburg had become, and all of her accomplishments and what they meant for this country. But I encourage you to read about her as much as you possibly can, including her memoir, My Own Words. 

The Politics of the Supreme Court: 8 Possibilities, Reminders, and Things to Watch Out For  3:21
But I want to briefly speak to the political implications here first, and then speak to the broader implications. Because the politics here is incredibly important.  There are a number of ways things can go from here. So here's a quick list for you of possibilities, reminders, and things to watch for. 

Donald Trump will see this as a boon to his bleeding campaign. Politically speaking, he should. Trump has been losing support across virtually every demographic, even demographics that were critical to his win in 2016. If you listen to this show, then you already know about suburban voters, of course, but he's also lost his edge with voters over 65, non-college educated white Americans, and even some cracks in his evangelical support. But especially with those voters, a conservative, and specifically pro-life, nomination to the court could help him regain some of those losses.

Senate Majority Leader Mitch McConnell will do whatever he needs to to fill Justice Ginsburg's seat. You might remember back in 2016 after Justice Scalia passed away. Then-President Barack Obama nominated Merrick Garland to Scalia's vacancy. Mitch McConnell and the Republican Party, in an unprecedented move, blocked it. McConnell flatly refused to even put Garland's nomination up for a vote.

McConnell's reasoning at the time was that if a vacancy on the court comes up during an election year, the winner of that election should be the president who nominates a judge to fill the seat. Just days after Scalia died, McConnell said:

"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."

McConnell was successful in blocking Obama's nominee and retaining that vacancy for Trump to fill, as he did, with Justice Neil Gorsuch.

This time, however, McConnell will not stick to this rule (that he made up.) McConnell will give us all sorts of backwards and exhausting intellectual acrobatics to try to justify why he won't be consistent with what he did, and said, in 2016. He recently said something about it being dependent on which party controls the chamber or which party is in the White House or blah blah blah.

Don't get caught in it.

Mitch McConnell does not care about being consistent. The reasoning he used for that move in 2016 was so clearly done in bad faith that we would be foolish to expect any consistency or intellectual integrity here of any type.

It is in my opinion that a better play for both Trump and the GOP would be to delay this until after the election. The stick that Trump has been using so far - the whole "chaos in Joe Biden's America... in... Trump's... America..." thing is not working well. The campaign is in desperate need of a carrot. So using this nominee as a carrot for those court-minded voters is the best move. 

If they try to run this through before the election, they risk losing critical votes from vulnerable Republicans, and then risk losing those Senators' seats. Getting the confirmation through too quickly before the election also risks the whole thing just being lost to the news cycle. I don't think it's in their best interest to do so. 

So, if you're on the left side of things, you should know that if this is delayed until after the election, don't count it as a victory just yet. I still think that would be better, but it's still not clear to me which advantage actually is better. We'll just have to wait till we find out more as weeks go.

Adding to that point of it being better for them to delay: Let's be honest. In order to have a chance at winning this election, Donald Trump has to take the focus off of COVID-19. If voters vote with COVID-19 as the largest issue on their minds, Donald Trump is going to lose. He needs something different in the new cycle, and he needs it fast. This is the perfect thing to take the attention off of COVID especially with all the hearings that happen before the vote. That's my expectation, that we'll have all the hearings on the Senate Judiciary Committee and all that procedural stuff before the election and the vote itself after.

Donald Trump will choose a pro-life judge. I have no doubt. My bet at this point, and all signs point to, the nominee being Amy Coney Barrett. Barrett is a devout Catholic and she's extremely anti-choice. In fact, back in 2018, when Kavanugh's nomination began to derail, it was my thought that Trump would have been politically wiser to withdraw Kavanaugh and put up Barrett.

Either way, and even if it's not Barrett, we can expect a conservative that is much further right and is likely in the realm of Justices Thomas and Alito. The median of the court, which sits with Chief Justice Roberts at this point, will shift dramatically. 

And this is the Supreme Court; Justices have lifetime appointments. This will change the makeup of the court for generations. 

This whole situation puts vulnerable Republicans between a rock and a very serious hard place. Susan Collins, for instance, as we'll talk about more in this coming Thursday's episode, is five points behind her competitor - largely because of the backlash she received in Maine due to her vote for Brett Kavanaugh back in 2018. She's desperate right now to preserve her reputation for being independent. 

Democrats need four Republicans to flip in order to block the nomination. That's a tall order here. The three that would be most likely to, given the right conditions, would be Collins, Mitt Romney of Utah, and Lisa Murkowski of Alaska. Murkowski is not up for reelection this year, but as of this recording, both she and Collins have said that they are opposed to a vote before election day. 

And, again, don't count that as a victory. This is also why I think it's in Trump's best interest to delay until after the election - so that these votes are still available to him then. 

But eyes are now on Romney and Cory Gardner of Colorado, who is one of the most vulnerable senators this year.* Romney has shown a willingness to stand up to Trump, being the only Republican who voted to convict him during the impeachment trial. That being said, Romney is pro-life. And if he likes the nominee, which there's a good chance he will, I would not bet on him to flip. Gardner, despite the political precarious situation he's in, has stuck through thick and thin to Donald Trump. 

All that being said, there are no guarantees here. This is an extremely fluid situation. So we'll just have to see what unfolds.

What Will Likely Happen 10:02

Regardless of whether or not Donald Trump wins re-election or whether or not the GOP keeps the Senate, this Supreme Court seat will likely be filled by the end of the year. Democrats just don't have a whole lot of power here.

What Should Happen 10:18
Now, everyone's opinion is different on this. But my view is that both Senate Republicans and Democrats have done things over the last several years that have further politicized the Supreme Court, each one-upping the other one time after the next.

This road that we've been going down will not last forever. This whole situation is just asking for a constitutional crisis and in 2020, there are way too many avenues toward that already. We need to de escalate. So, it's my opinion that in order to do that, the GOP needs to keep their word. 

That's the standard they bound themselves to and that is the standard we need to hold them to. At very minimum, letting the winner of the election choose the nominee will restore some semblance that the people at the top on both sides are not just playing games with our livelihoods, and take their jobs somewhat seriously, especially when it comes to a lifetime appointment.

But, this is politics. And that's apparently a lot to ask for. So we need to use the mechanisms that are available to us in the best way possible. 

A Word For Those Who Are Afraid 11:26
I do want to directly address those who are genuinely afraid right now, especially minority Americans. A conservative majority on the court is heavy, particularly when the threat to some very basic constitutional rights feels like it's just at the gates. But I speak for a lot of people in this country when I say that I am with you, and I am for you.

Look, if we have learned anything from Justice Ginsburg's legacy, it's that the fundamental rights granted to every one of us derived from self evident truths are worth fighting for at the midnight hour when it seems the most impossible. Let's go back to Justice Ginsburg's quote I mentioned earlier about dissenting opinions:

"So that's the dissenters hope: that they are writing not for today, but for tomorrow."

We may take a hit today, but do not give up. You are fighting for so much more than just today. You are fighting for so much more than just yourself. 

So... dissent.

If our Republican Senators do not keep their word from 2016, then make sure they don't forget it: 


*On Tuesday, 09/23/20, both Senators Mitt Romney and Cory Gardner made statements in support of a vote on a nominee before the election. This means that the chances of Dems blocking the nomination are now all but zero.

Justice Ruth Bader Ginsburg's Legacy
The Historical Importance of Dissent
The Politics of SCOTUS: 8 Possibilities, Reminders, and Things to Watch For
What Will Likely Happen
What Should Happen
A Word for Those Who Are Afraid