The Legacy of Ruth Bader Ginsburg: What to Learn From Her Successes and Failures

Painting by Simmie Knox, under commission of the United States Supreme – Public Domain Court

The death of Justice Ginsburg is a great tragedy on multiple levels. She was deeply respected, even beloved, for a lifetime dedicated to guaranteeing justice and equality for people who did not yet have it. She did this before and after she was appointed to the Supreme Court.

It is highly unlikely that either President Donald Trump or Senator Mitch McConnell will consider delaying her replacement until after the inauguration. This is in sharp contrast to McConnell’s refusal to hold confirmation hearings for President Obama’s nomination of Merrick Garland to replace Justice Scalia nearly a year before the inauguration of the next president. Because so many Republican senators fear Trump’s power to hurt senators who are on the ballot now, it is unlikely that a sufficient number of senators can be convinced to delay confirmation hearings until after the inauguration.

That leaves those of us who want the replacement of Ginsburg to be delayed, as Obama’s appointment of Merrick Garland to replace Justice Scalia’s replacement was delayed by McConnell, with few options. I suggest two:

1. Punish McConnell for this and other damage he has caused by helping Amy McGrath, his Democratic opponent, win his Senate seat…..

2. Don’t let this happen again. If Ginsburg had retired when Obama was president — ideally, early in his first four years — he would have appointed a younger person to her seat on the court. Because she didn’t do that, the high court is likely to remain a strong conservative block for decades, with little chance of even 5-4 votes on court decisions. It will no longer be seen as a last resort for justice to be preserved, let alone gained.

Justice Ginsburg is not the first justice who didn’t personally face his or her own mortality and choose, for the benefit of all Americans, to retire in order to insure that basic rights would continue to be protected. It is, however, the first time this has happened when the conservative block on the court is so large that it is likely it will dominate the court for decades – especially with one more Trump nominee.

We owe Justice Ginsburg enormous thanks for her expansion of justice to all people, especially women. I hope we also will learn from her failure and remember that there always are great younger people for whom older people should make room, not only for the sake of the promise of new leadership, but mainly for the sake of making it possible for great values to continue to protect Americans for generations.

What we can do now:

When Democrats are elected president, find ways to convince older liberal justices on the Supreme Court and other federal courts to retire so they can be replaced by justice-loving justices. First up, if Biden becomes president: Justice Stephen Breyer, who was appointed to the Supreme Court by President Clinton in 1994, is 82. If Joe Biden is elected, Breyer should be inspired to retire.

Betty Medsger is a former Washington Post reporter, former head of Department of Journalism at San Francisco State University, author of Framed: The New Right Attack on Chief Justice Rose Bird and the Courts and The Burglary: The Discovery of J. Edgar Hoover’s Secret FBI.