Below is my column in The Hill newspaper on the death of Associate Justice Ruth Bader Ginsburg. We expect the nomination of her replacement this week and what could be the most heated confirmation process in history. We may look back at Bork and Kavanaugh as examples of bipartisan tranquility by comparison. As Washington returns to its favorite blood sport, many will continue to mourn the loss of an extraordinary jurist.
Here is the column:
Many years ago, I spoke at a judicial conference and mentioned with pride at lunch that George Washington University graduated the first woman to argue before the Supreme Court. I had barely spoken the name of Belva Ann Lockwood when a barely audible voice came from across the table saying, “Well, of course, they withheld her diploma.”
The voice was that of Justice Ruth Bader Ginsburg and, as usual, she had delivered a haymaker in a virtual whisper. I had the honor of meeting her many times, but that incident was the ultimate “RBG” moment for me. She was always direct and honest. And she was right. We could claim to have done what other schools refused to do, but we failed to entirely evolve in the moment. Lockwood laid the foundation for the transformation of the Supreme Court. Ginsburg was that transformation.
My favorite fact about Ginsburg is her childhood nickname. Born Joan Ruth Bader, her parents had teachers call her Ruth due to a large number of Joans in her class. But her nickname was Kiki due to that fact that she was a “kicky baby.” When it came to facing down injustice, Ginsburg was kicky, scrappy and, above all, courageous in her life.
After graduating at the top of her class from Columbia University, she had difficulty finding a job as one of the few women with her cohort. Supreme Court Justice Felix Frankfurter, despite being a former Harvard University law professor, refused to hire her as a clerk due to her gender, even with the recommendation of legendary dean Albert Sacks. Ginsburg refused to be bowed by the prejudice of figures like Frankfurter.
Instead, Ginsburg kept kicking. She was a great advocate for the rights of women and then later became a federal judge on the District of Columbia Circuit. She was nominated to replace Justice Byron White as the second woman to sit on the Supreme Court. While Ginsburg became the ultimate liberal icon, she was selected by President Clinton as a moderate who was envisioned to reflect his own more moderate politics.
Ginsburg would go on and prove to be one of the most consistent jurists in Supreme Court history. She had a sense of a legal “north star” to which she wanted to lead her judicial decisions and the nation as a whole. That is why her loss is felt so profoundly by so many. She was a voice of absolute clarity and consistency. Indeed, her opinions were like herself, unadorned and unyielding. She had the strength of her convictions, and her opinions reflected that strength to millions of men and women.
On occasion, I was critical of both Ginsburg and her close friend and fellow justice, the late Antonin Scalia, for their public statements about cases or politics. Yet both became icons to millions of Americans. I once called them the first celebrity justices who had a fan base that had been unknown for members of the cloistered Supreme Court. As opposed as I am of public statements by sitting justices, I was still moved to see how young people reacted when this powerful yet diminutive figure walked into a room. She was more than a jurist because she personified what many saw as the transcendent potential for justice in society.
Ginsburg left an indelible legacy in Supreme Court decisions, like in her majority opinion in United States versus Virginia, striking down the “men only” admissions policy at the Virginia Military Institute under the equal protection clause of the Fourteenth Amendment. Her life, including the discrimination she had faced, prepared her for that moment.
As an environmentalist, one of my favorite opinions of hers was Friends of Earth versus Laidlaw Environmental Services, in which Ginsburg wrote for the majority to support the right of residents to sue an industrial polluter. She insisted that citizens must be heard when pollution threatened their “recreational, aesthetic, and economic interests” in nature.
While Ginsburg was not known for broad or prosaic opinions, she became a judicial symbol in her own right. She was the common denominator on the bench in opinions mandating equality and dignity for all groups and genders. She varied little in her votes and was always there for the rights of women and for the protection of minority populations.
It is that clarity and consistency that makes her possible replacement by President Trump seem so cataclysmic to liberals, especially just weeks before the election. For liberals, it is the nightmare scenario that I wrote about during the final term of President Obama, when Ginsburg resisted pressure to retire. At the time, she declared that she had more to do on the Supreme Court, and she did. Ginsburg went on to secure surprising victories even as the Supreme Court shifted to the right.
Now, however, her replacement by Trump would set at risk an array of doctrines that dangle by swing votes, from abortion rights to affirmative action in college admissions to death penalty issues. If she is replaced by a staunch conservative, it would represent arguably the most significant nomination in the history of the modern Supreme Court.
Indeed, that battle began within hours of her death, as Senate Majority Leader Mitch McConnell promised a floor vote for a nomination, while Senate Minority Leader Charles Schumer and Democratic candidate Joe Biden insisted the next president should pick her replacement. There are Senate Republicans such as Susan Collins of Maine, Lindsey Graham of South Carolina, Charles Grassley of Iowa, and Lisa Murkowski of Alaska who are on the record as opposing a nomination so close to an election. Given this fleeting chance for a reliable vote against Roe versus Wade, those positions could be tested in the weeks to come.
Even without a closely divided Supreme Court, any replacement of her would be traumatic for millions of Americans. There is no replacing her, and we all know it. She is the type of personality that comes only a few times in history. Ginsburg defied prejudice and instead bent it to her will, with the sheer power of one person who refused to yield.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.