By Julia Schwed ‘21, Editor-in-Chief

On Friday, September 18, 2020, what Democrats––and anyone who cares about freedom of choice, ObamaCare and equal rights––had been dreading happened: Supreme Court Justice Ruth Bader Ginsburg passed away. Justice Ginsburg was appointed to the Supreme Court by President Clinton in 1993 and, by the time of her death, was the most senior liberal justice on the court. Only eight days after Justice Ginsburg’s death, President Trump nominated Amy Coney Barrett to fill the vacancy. On the day of her nomination, Judge Barrett gave a speech commemorating Justice Ginsburg, saying: “[Justice Ginsburg] not only broke glass ceilings, she smashed them. For that, she has won the admiration of women across the country and indeed all over the world.” Judge Barrett’s praise might even be an understatement. Before Justice Ginsburg became a Supreme Court judge, she argued and won landmark Supreme Court cases that established women’s rights to equal treatment under the law. As a Supreme Court justice, she wrote the majority opinion overturning the male-only admissions policy at the Virginia Military Institute, and she gave a memorable oral dissent that paved the way for the Lilly Ledbetter Fair Pay Act of 2009 that prevented gender-based pay discrimination. While Judge Barrett said what many of us believe about Justice Ginsburg, it is clear from Judge Barrett’s past rulings and comments that she poses a threat to the progress made by Justice Ginsburg. 

The risk that Justice Ginsburg could pass away during a Republican presidency had been on the minds of Democrats for years. Many thought that it would be better for Justice Ginsburg to step down during President Obama’s presidency, thereby assuring that her replacement would be appointed by a Democratic president. Justice Ginsburg, however, did not agree. When asked about the subject, Justice Ginsburg acknowledged that there were many who wanted her to step down, but her response was “I ask the question: Who do you think that the President could nominate that could get through the Republican Senate? Who would you prefer on the court [rather] than me?”. Justice Ginsburg stayed on the court because she loved her work and was able to keep up with the demands of being a justice well into her 80s, and she believed that continuing to serve on the court energized her and helped her battle her cancer. However, it appears that Justice Ginsburg may have had some regret in her final days, as she told her granddaughter, “My most fervent wish is that I not be replaced until a new president is installed.” It is sad to think that someone who dedicated so much of her life to improving the lives of others died in fear that her work would be undone.  

Justice Ginsburg passed away with the election only 46 days away, leaving Democrats with some hope that the Senate would not confirm her replacement until after the election. Democrats pointed out that when Justice Antonin Scalia died 269 days before the 2016 election, the Republican-controlled Senate refused to hold hearings or vote on President Obama’s nomination of Merrick Garland, claiming it was too close to Election Day. Republican Senator Lindsey Graham expressed the view of many Republicans: “I want you to use my words against me. If there’s a Republican president [elected] in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.”  Now, four years later, Republicans in the Senate are going back on their word and rushing to fill Justice Ginsburg’s seat before the election. 

Republican Senators have tried to justify their change in position by arguing that the current situation is different than 2016 because Republicans control both the White House and the Senate. However, their current position directly contradicts what they said in 2016. As the Republican Chair of the Senate Judiciary Committee at the time, Chuck Grassley, said, “The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year…It only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.” Now that it suits them, Republicans are not willing to “defer to the American people.” In fact, the only meaningful difference between 2016 and today is that Judge Garland was nominated with plenty of time for the Senate to consider his nomination carefully, while Judge Barett’s appointment is going to be rushed through without proper consideration. 

While I appreciate that Judge Barrett acknowledged Justice Ginsburg’s contributions, the more meaningful tribute to Justice Ginsburg would be not to spend the next 40 years undoing her life’s work.