Hope in one hand
Ruth Bader Ginsburg died yesterday.
I don’t need to tell you she was a titan of jurisprudence, whose impact and legacy will be felt long after her household name recognition is gone.
I consider myself lucky to have shared a room with her once, during her visit to West Point in 2018 just after I had begun teaching there. I will remember the cadet cellist playing Bach’s Prelude in G for her as she watched on with keen interest; how she spoke so lovingly of her late husband, whose memory was brought back by her being among the military (her husband was in the Army); her walkthrough of the legendary VMI case. Maybe it’s silly, but that’s the closest I’ve ever been to something like intellectual royalty.
Taken in isolation, I doubt many would insist her death was a tragedy: she lived to 87, and led a remarkable and full life. It’s deeply sad, of course, that she is gone, not least of all to her family and friends who will miss her dearly, to make no mention of those who saw her as a beacon of truth and righteousness in a post-truth world.
But in another sense, her death is indeed a tragedy, since it cuts the final thread on which any bit of our collective sanity was hanging. Her death makes it overwhelmingly likely that the president will nominate, and the Senate will confirm, a new justice to replace her—likely Amy Coney Barrett, who will keep the gender balance on the court (a good thing, to be sure!), but whose jurisprudence is, by all accounts, Kavanaugh-esque. We are on the verge of losing the ACA; having Roe v. Wade gutted, if not overturned; expanded permissiveness for discrimination; and so on.
Recent years have yielded myriad frustrations, to put it mildly, with Supreme Court nominations. Kavanaugh’s confirmation was a nightmare; I remember watching the Blasey-Ford testimony while crying in my office (which I shared with a colleague, who had other colleagues in and out; an awkward scene at an ostensibly non-partisan institution). I remember the look in Jeff Flake’s eyes as that woman stopped him in the elevator to plead for him to do the right thing. I remember the unbelievable coincidence that I was about to teach Miranda Fricker’s theory of epistemic injustice, and decided to discuss the current events in my class; most cadets were too sheepish to say anything, but I was proud of those who did, even if some of their remarks were (I later discovered) inspired by right-wing disinformation sites.
Kavanaugh’s confirmation was disheartening for a host of obvious feminist reasons that I won’t rehash here (see above). But it was also deeply troubling because it confirmed what Merrick Garland’s debacle had strongly suggested: that the GOP is dripping with hypocrisy, unprincipled, craven, and relentless in their pursuit of power for its own sake.
Folks in my midst had been having miniature panic attacks every time RBG’s name popped up in a push notification since 2016—and with good reason: we all knew that were she to die, or retire, or be too ill to continue on the bench, our future would be in jeopardy. This was true well into 2020, when the “Merrick Garland Rule” would have been applicable. Recall that this rule—what the GOP had touted as an important norm—is supposed to have been the justification for why they refused to take up Merrick Garland’s nomination in 2016. But, again, we all knew that this rule was nothing more than a pretext for them: faced with the same situation but their preferred USSC nominee, this norm would suddenly vanish.
And this is what we’re seeing already: McConnell is already finding irrelevant facts to cite as a post-hoc rationalization of his blatant hypocrisy; Lindsey Graham (now chair of the judiciary committee) is walking back his absolutely categorical refusal to take up a nominee in an election year. He denied it in the strongest possible terms—“use my words against me,” he had said—and yet here we are.
What’s most upsetting to me, in this moment, is the knowledge that the GOP will get what they want, and the Democrats will do nothing about it, even if they win in November—perhaps especially if they win in November.
Biden could of course pack the court, or threaten it now as a way of staving off nomination hearings until after January. But he has repeatedly said he won’t: he cares too much about the norms. Even if he wanted to, there would be a handful of Senators—particularly those at risk of losing in 2022—who would clutch their pearls and insist on the norms being maintained.
There’s a sense in which this is exactly right: we shouldn’t sink to their level of cravenness; they go low/we go high; two wrongs don’t make a right, etc. etc. ad nauseam. But there’s another sense in which this is utterly unacceptable: the world is aflame—literally—and the risks of unilateral adherence to byzantine norms are just too great.
There are those cynical few who will comment that the sadness over RBG’s death is overwrought or due largely to her being a cult figure among those on the center-left. But the more plausible take, to my mind, is that we know how precarious things are—how often we have to rely on a single GOP vote, a John McCain thumbs-down, a veritable profile in courage—just to stay afloat. And we know deep in our bones how RBG was, for better or worse, the dam that kept us from the deluge.
And now, malheureusement, après elle, le deluge est inévitable.
-JVD