Like an Exclamation Point in the Heavens
According to an age-old Jewish belief, when a person passes away on Shabbat (the Jewish Sabbath) or a Yom Tov (a major Jewish holiday), it is as if the ribono shel olam (the Master of the Universe) has placed a shimmering exclamation point in the highest heavens for the one who has departed this world. Now, when that major Jewish holiday coincides with the Sabbath itself, that exclamation point - so we are told -not merely shimmers; it is radiates with a light that seems to last an eternity. I have to believe that is why Justice Ruth Bader Ginsburg departed this mortal coil on what we call Shabbat Rosh Hashana - “The Sabbath which falls on the Jewish New Year.” It permits G-d to express in the most obvious of ways, just how truly exceptional the good justice was, is, and always shall be.
Without question, Ruth Bader Ginsburg was one of the most stellar and consequential Justices in the history of the Supreme Court of the United States. A thoroughgoing judicial progressive, she was also a great friend of the court’s most intellectually stolid conservative, the late Antonin Scalia. What in the world could the two have in common? Opera. That’s the way things used to be in politics and the judiciary; human beings getting along with one another because they discovered the humanity in one another . . . regardless of their disagreements. Justices Ginsburg and Scalia also shared a love of the law despite viewing it from bipolar angles.
(BTW: for those who might want to learn a lot more about Ruth Bader Ginsburg the woman, I highly recommend the best book I have ever read about the Jewish Justices of the Supreme Court: my good friend, constant lunch companion and fellow Californian David Dalin’s magnificent work, Jewish Justices of the Supreme Court From Brandeis to Kagan. It’s a great read!).
Yesterday (September 21) it was announced that Justice Ginsburg will lie in state in the United States Capitol. It is an unusual honor for a Supreme Court Justice and one that has never before been granted to a woman. Had the decision been in the hands of ‘45, there is every reason to assume that this honor would never have been afforded America’s more revered and beloved legal lioness. But precisely who receives the honor of lying in state in the Capitol is a decision that rests squarely with the Speaker - in this case, Nancy Pelosi who was a longtime friend and admirer of Justice Ginsburg. In describing RBG’s death, Madam Speaker called it “an incalculable loss for our democracy and for all who sacrifice and strive to build a better future for our children.” Also out of the ordinary, Justice Ginsburg will lie in repose at the Supreme Court for two days - tomorrow and Thursday, and her coffin will be placed under the portico at the top of the building’s front steps. Her coffin will be placed on the Lincoln catafalque, which was used for President Abraham Lincoln’s coffin when his body lay in state in the Capitol Rotunda in 1865.
Such respect has rarely been shown for a Supreme Court justice. But then again, we’ve rarely been in the historic presence of such a diminutive giant . . .
Then too, RBG’s death - like just about everything these days - has already become the focus of a nasty political war of words and deeds. No sooner had justice Ginsburg’s passing been announced then partisan politics reared its terribly ugly head. Within 2 hours, Georgia Republican Representative Doug Collins tweeted “RIP to the more than 30 million innocent babies that have been murdered during the decades that Ruth Bader Ginsburg defended pro-abortion laws. With @realDonaldTrump nominating a replacement that values human life, generations of unborn children have a chance to live,” Collins wrote. (It should be noted that Ruth Bader Ginsburg didn’t take her seat on the nation’s highest court until Roe v Wade had been the law for nearly a generation and that for nearly more than 25 years, Donald Trump was one of NYC’s larger donors to Planned Parenthood.) Getting back to Rep. Collins, even Fox News nailed him for his extra nasty tweet. Many conservative Republicans were terribly concerned lest the next Justice not be 100% in favor of overturning Rose V. Wade, putting the 2nd Amendment in jeopardy, or permitting the President of the United States from using his office to do whatsoever he sought fit to do. And mind you, all this was made public hours and hours before Justice Ginsburg was laid to rest.
Those who have long followed politics closely will well recall all the sturm und drang (turmoil) that arose in Mitch McConnell’s senate when then-POTUS Obama nominated Federal Judge Merrick Garland to the High Court more than 8 months before the 2016 presidential election. (Garland, then - and now - was a United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. whom Obama had nominated to replace the late Justice Antonin Scalia. Back in 2016, you will recall, McConnell and virtually all his Republican colleagues refused to even consider the nomination of the progressive Judge Garland claimed that “voters should be given a say by way of choosing the next president. A sprinkling of quotes from 2016 will reveal how Leader McConnell and his Republican colleagues responded to the question “Should the Senate vote hold hearings or a vote on Judge Garland?
Marco Rubio (FL): “I don’t think we should be moving forward on a nominee in the last year of this president’s term. I would say that if this was a Republican president.” (3/17/16)
Chuck Grassley ( IA): “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 should not be denied a voice. Do we want a court that interprets the law, or do we want a court that acts as an unelected super-legislature . . .?” (3/16/16)
Mitch McConnell (KY) “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..” (2/13/16)
John Hoeven (ND): ““There is 80 years of precedent for not nominating and confirming a new justice of the Supreme Court in the final year of a president’s term so that people can have a say in this very important decision.” (4/21/16)
Lindsay Graham (SC): “I strongly support giving the American people a voice in choosing the next Supreme Court nominee by electing a new president. I hope all Americans understand how important their vote is when itcomes to picking a new Supreme Court justice. (3/16/16)
John Cornyn (TX): “At this critical juncture in our nation’s history, Texans and the American people deserve to have a say in the selection of the next lifetime appointment to the Supreme Court. The only way to empower the American people and ensure they have a voice is for the next president to make the nomination to fill this vacancy.” (3/16/16)
Ted Cruz (TX) “This should be a decision for the people. Let the election decide. If the Democrats want to replace this nominee, they need to win the election.” (2/14/16)
As of this morning, there are only 2 Republican members of the U.S. Senate - Alaska’s Lisa Murkowski and Maine’s Susan Collins - have announced that they urge waiting until after the 2020 election before taking up the matter of Justice Ginsburg’s replacement. It seems clear that all those Republicans who kept Judge Garland from even getting a hearing because of some “Constitutional principle,” have now shown their true colors . . . bright yellow. And this, despite a report from NPR’s longtime legal affairs correspondent Nina Totenberg that Justice Ginsburg’s dying wish (made bedside surrounded by family members and her personal physician) was that she wanted the winner of the November election to choose her replacement. The POTUS and members of the Fox entertainment squad rushed to declare - without a scintilla of proof - that the dying Justice never made this final request. Instead, ‘45 suggested (again, without evidence) that the dying wish was likely crafted by either Adam Schiff, Chuck Schumer and/or Nancy Pelosi. Fox entertainer Tucker Carlson said flatly that he doesn’t believe Ginsburg actually dictated the message: “We don’t know actually what Ruth Bader Ginsburg’s final words were. Did she really leave this world fretting about a presidential election? We don’t believe it for a second.” Rep. Schiff (whom ‘45 referred to as “Shifty” Schiff in his Tweet denying Ginsburg’s dying wish (which her granddaughter wrote down) issued his own tweet denying ‘45’s claim: “Mr. President, this is low. Even for you. No, I didn’t write Ruth Bader Ginsburg’s dying wish to a nation she served so well, and spent her whole life making a more perfect union. But I am going to fight like hell to make it come true. No confirmation before inauguration.”
Justice Ginsburg’s longtime friend, correspondent Totenberg said yesterday that she confirmed the dying wish with the Justice’s doctor. Despite this, Trump and Carlson’s false claim spawned numerous conspiracy theories on social media, claiming that Ginsburg dictated the note to her “8-year old granddaughter.” (Far from being an 8 year old, Clara Spera [who always called her grandmother bubbie attended Cambridge, graduated from Harvard Law in 2017, and is married to Shakespearean actor Rory Boyd.) All this, and Justice Ginsburg has yet to be laid to rest. . .
It is highly likely that Trump and the Republicans will get their way and make sure that SCOTUS finally becomes an impregnable bastion of Federalist Society judges; one easily capable of overturning Roe v Wade, of kicking the vast majority of people with preexisting medical conditions (which now includes COVID-19) off of Obamacare; of finding the constitutional “Emoluments Clause” unconstitutional; of outlawing the teaching of Darwinian theory in public schools and of giving the National Rifle Association whatever in the world it wants.
So what can be done? To my way of thinking it is imperative that Democrats recapture both the White House and United States Senate, expand Democratic victories to state legislatures and governors’ mansions, and give serious, serious consideration to instituting their own version of FDR’s “court packing plan.” There is nothing in the Constitution which states that SCOTUS must have precisely 9 members.
And above all, let’s keep the spirit and strength of Justice Ruth Bader Ginsburg alive. Just look up to the heavens, look for that celestial exclamation point and let her fortitude be our fuel.
42 days until the election . . .
Copyright©2020 Kurt F. Stone