THE NOTORIOUS RBG — and what to do now that she’s gone.

by John P. Flannery

On Friday, September 18, Supreme Court Justice Ruth Bader Ginsburg passed away at age 87 from pancreatic cancer.

Justice Ginsburg had been fighting one form of cancer or another since 1999.

Despite her illness, the Justice marched on, in court, and out of court.

Though slight and fragile in appearance, Justice Ginsburg was a woman of indomitable spirit with a solid steel backbone.

When Justice Ginsburg attended Harvard and Columbia law schools, she excelled, making law review at both schools.

Afterwards, she taught civil procedure at Rutgers Law School and Columbia Law School.

She fought for gender equality and women’s rights, won victories before the Supreme Court and joined the Supreme Court on President Clinton’s judicial nomination, based on a recommendation by US Senator Orrin Hatch.

There are many cases that Justice Ginsburg considered while a member of the Court, one decision close to the Commonwealth, issued in 1996, was her majority 7–1 opinion in United States v. Virginia Military Institute, holding that VMI had to admit women, ending its 157 year “tradition” barring women from what had been this all-male military academy.

Justice Ginsburg wrote, “While Virginia serves its sons, it makes no provision for her daughters. That is not equal protection.”

When it came to questions of a woman’s right to choose what to do with her own body, Justice Ginsburg wrote in dissent that “the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.”

In a Voting Rights case, Justice Ginsburg wrote another dissent, one of many, attacking the court’s majority opinion: “Throwing out preclearance when it … is continuing to work … is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Justice Ginsburg once gave an address that summed up her life’s work — “that’s what it’s all about: women and men, working together, should help make the society a better place than it is now.”

Looking for that magic moment that turned Justice Ginsburg’s attention to discrimination may have occurred when she attended a dinner as a student at Harvard Law and was asked by the Dean, Erwin N. Griswold, to explain how a woman justified taking a position from a man in a class at Harvard Law School.

Years later, Justice Ginsburg explained that part of her work for gender equality arose out of the “indignities” women suffered at Harvard, shut out of the library, barred from the law review banquet, and denied space in the Law School dorms.

As for her justification for taking a space in the law classes from a man, her life’s work best answers the Dean’s sexist inquiry.

Ginsburg was “crowned” with the title, the “Notorious RBG” — mimicking rapper Biggie Smalls’ “Notorious B.I.G.” nickname — when an NYU Law Student, Shana Knizhnik, posted the nickname on line to underscore the Justice’s dissent in the voting rights case I mentioned. It went viral.

When not tapping out an opinion, Justice Gingsburg became the heroine in children’s books, inspired Halloween costumes worn by young and old, those dolls that look like her, a coloring book, the subject of a documentary film, and the star of a dramatic film bio.

As the original Biggie Smalls might say about the Justice, “If you don’t know, now you know.”

As I write this, her body will lie in State, a high honor paid only one other Justice, William Howard Taft who was also the President of the United States.

On the day that Justice Ginsburg died, in person voting began in Virginia.

Almost immediately, Senate Majority Leader Mitch McConnell announced he would convene hearings to consider a replacement.

In 2016, when President Obama nominated a judge to fill the vacancy created by the death of Justice Scalia, Senator McConnell said the Senate should not consider the nomination and wait instead until after the presidential election: “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.”

In 2016, Sen. Chuck Grassley (R-Iowa), then Judiciary Committee Chair, said: “A lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics. The American people shouldn’t be denied a voice.”

In 2016, Sen. Lindsey Graham (R-S.C.), the current Judiciary Committee Chair, said: “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election.”

In fact and truth, President Obama had the power to nominate and expect the Senate to advise and consent on that nominee.

But now, when it serves Mr. Trump and Senator McConnell to pack the court, Senator McConnell refuses to wait upon the election.

McConnell will railroad the Senate confirmation process.

The features of the nominee are manifest:

It must be an ideologue who believes a fecundated ovum is a person, and who disputes the holdings in Griswold v. Connecticut and Roe v Wade that respect a woman’s right to be let alone, to control her own body.

This nominee will say she respects stare decisis (legal precedent) but what they mean is they will find exceptions to Roe v. Wade to render the holding a nullity.

This nominee will be a product of the Federalist Society, who tell Trump who to appoint, and oppose the long established doctrine separating church and state.

Judge Amy Coney Barrett, one of the possible nominees, gave a graduation speech stating, “your legal career is but a means to an end. And that end is building the kingdom of God.”

The nominee will be expected to opposes the ACA (Affordable Care Act), thus putting millions at risk for a lack of health care during a pandemic. If appointed before the election, do they expect the nominee to participate in the oral argument on the ACA.

The other leading judicial nominee, Judge Barbara Lagoa, is under consideration not just because of her (compliant) legal acumen, as I’ve outlined, but how her connection to the Cuban community in Florida may help Trump carry Florida in the presidential election.

Whomever is appointed to fill Justice Ginsburg’s vacancy, it should be an ABA qualified lawyer or jurist who is no ideologue, independent of any one group, sensitive to the rights of women and every other litigant, respectful of precedent, concerned about health care, and a person who will restore trust to the Court that Mr. Trump and McConnell have packed.

JPF