President Trump said Tuesday he will announce his Supreme Court nominee on Saturday, after funeral services are held for the late Associate Justice Ruth Bader Ginsburg.
A political firestorm will follow.
Senate Majority Leader Mitch McConnell (R-Ky.) has indicated that hearings and a vote will take place quickly — despite opposition from a small number of his caucus and cries of hypocrisy from Democrats. Even before we know who the nominee is going to be, it sounds like McConnell has the support to bring the nomination to the floor.
The potential that a conservative will replace Ginsburg, a trailblazing advocate for equal rights and a cult figure on the left, has energized foes of Roe v. Wade and the Affordable Care Act — and it has deeply alarmed progressives, who fear the court could be lost for decades.
On Monday, Maryland Matters senior reporter Bruce DePuyt spoke with U.S. Rep. Jamie B. Raskin (D-Md.), a constitutional law professor, about Ginsburg’s legacy and the expected Senate battle over Trump’s replacement pick. The House of Representatives has no formal role in the process, but Raskin vows that he and his colleagues will “fight like hell” for the important laws a conservative Supreme Court may seek to dismantle.
This transcript of the conversation has been lightly edited for lengthy and clarity.
Maryland Matters: What is Justice Ginsburg’s legacy, in your view?
Rep. Jamie B. Raskin (D-Md.): Future generations will regard her as very similar to Thurgood Marshall. Thurgood Marshall devoted his career as a lawyer to developing a litigation strategy to bring down Jim Crow segregation and he largely succeeded in doing so, and then was able to flesh out the implications of that as a Supreme Court justice.
And I think it’s very similar with Justice Ginsburg. As a lawyer with the ACLU Women’s Rights Project, she really devised the legal strategy to bring down hundreds of laws around the country that discriminated against women, that excluded women, that subordinated women.
After she reached the Supreme Court, she wrote the decision which you could liken to Brown vs. Board (of Education) — the VMI case, United States vs. Virginia, which struck down the idea of separate but equal in higher education for men and women. She wrote that the government needs an exceedingly persuasive justification if it’s going to discriminate against women.
So I think that would be the core constitutional legacy of Justice Ginsburg. But she had a number of other important legal opinions that she wrote that were in dissent. For example, if you remember the Lilly Ledbetter case, she worked for 30 years at the Goodyear Company and then on the day of her retirement one of her colleagues said you’ve been such a good sport about the fact that you’ve been paid 20% less than the men all these years.
Her lawsuit was winning all the way until she got to the Supreme Court and they said the problem is that the statute of limitations ran out after six months and she should have sued after the first 180 days of being discriminated against. And of course she said I didn’t know anything about it for 30 years.
Justice Ginsburg, in dissent, said the statute of limitations begins to run with the first act of discrimination that the victim learns about, and of course that’s the only fair and reasonable way of thinking about it. She said Congress and the states need to fix this. That was an example of her really fighting for justice, and making sure that the right outcome eventually took place.
MM: Does it surprise you that she became a cult figure?
Raskin: Like Thurgood Marshall, Ruth Bader Ginsburg is someone who overcame every possible adversity and obstacle thrown up in her path. She was born to Russian Jewish immigrant parents who had very little money. She went to Harvard Law School but she couldn’t get hired by a law firm, she said, because she had three strikes against her — she was Jewish, she was female and she was pregnant.
But she let none of that stop her and realized that she had to devote her life to transforming American law, which was so saturated with sexist and misogynist assumptions about what women could do. So she’s an heroic figure — not just someone who broke all these barriers but someone who always fought for all women, and all people.
MM: What do you think her biggest disappointment would have been?
Raskin: Undoubtedly Justice Ginsburg’s biggest disappointment would be to learn that her dying wish went unfulfilled, because she confided that her dying wish was that her seat not be filled before the next presidential election.
And the reason she felt that was because she knew that everything she believed in — in terms of equal rights and civil rights and civil liberties — was at stake.
She also was greatly disappointed by the Supreme Court’s decision cutting the heart out of the Voting Rights Act in Shelby County vs. Holder in 2013. That’s when the court basically gutted the pre-clearance requirement which said that states making changes to voting systems have to pre-clear it with the Department of Justice if they have a history of voting rights discrimination.
The court struck it down on the bizarre grounds that there were no real problems taking place in Mississippi and Alabama and Arkansas anymore. Justice Ginsburg imperishably noted in that moment that this is like saying you’re not getting wet in the middle of a thunderstorm because you have an umbrella — and then throwing the umbrella away.
As soon as the court issued its decision, within weeks, the states began shutting down precinct polling places, combining polling places, ending early voting, imposing photo-ID requirements and putting up obstacles to peoples’ right to participate. I know that did cause her a lot of pain.
MM: The Supreme Court may soon have six conservatives. What are your biggest fears?
Raskin: The bum’s rush is on to fill her seat because they want to kill the Affordable Care Act. They want to dismantle pre-existing coverage, the Medicaid expansion and all of the protections that women have — as well as the protection for young adults.
So everything that we fought for in terms of health care is on the line right now.
Everybody knows about the hypocrisy of Senate Majority Leader McConnell, who said [in 2016] that February was too close to an election to have hearings and a vote, and now he’s conducting it in September and October and November, perhaps. But the hypocrisy pales in comparison with the cruelty they are about to exact on the population by destroying the ACA and the coverage it gives our people.
MM: Are there other issues?
Raskin: The civil rights and civil liberties of the people are in peril across the board. The GOP has been gunning for the reproductive rights of the people and has been trying to dismantle protections that women have with respect to birth control and abortion.
MM: Could you see marriage equality being reversed?
Raskin: That would be a fairly extraordinary thing. I’m not saying it’s impossible, but it would be extraordinary for them to essentially invalidate tens of thousands of marriages that have taken place. But this is a right-wing court driven by a right-wing party driven by right-wing religious extremists. So anything can happen.
MM: Given the time it has traditionally taken to hold hearings and a vote, is it more likely the Senate will end up voting on the president’s nominee after the election, during the lame duck session?
Raskin: I don’t know that answer to that question. Whether it’s before or after the election, it’s equally invalid and illegitimate. Let the people decide. There’s too much at stake. The Affordable Care Act is at stake. Reproductive freedom is at stake. The future of constitutional democracy is at stake. Voting rights and electoral integrity are at stake.
We can’t expect Sen. McConnell to care about Justice Ginsburg’s dying wish, but we should at least expect him to live up to the rule that he imposed on [President Obama’s nominee] Merrick Garland when he was left twisting in the wind for an entire year.
MM: Was Senate Minority Leader [Chuck] Schumer correct to say that if they hold a vote before January, then nothing is off the table?
Raskin: That’s certainly the right thing for Sen. Schumer to say. We have a party that is advertising its unbridled lust for power and control. And in a constitutional democracy it’s very hard to know how to respond to that. We are going to remain within the bounds of the law and civility at every turn, but we are going to fight like hell to make sure that we protect the people’s health care, the will of the people, and the rights and liberties of the people.