WASHINGTON – Supreme Court Associate Justice Ruth Bader Ginsburg died Friday evening, giving President Donald Trump and Senate Republicans a rare opportunity to solidify conservative control of the court, perhaps for decades to come.
Ginsburg, 87, and in failing health, had overcome four bouts with pancreatic, lung and colon cancer dating back to 1999 but apparently could not beat the most recent spread to her liver. She had announced her latest recurrence in July, again vowing to stay on the court "as long as I can do the job full steam."
The diminutive New York native leaves behind an enormous influence on the law as the nation’s preeminent litigator for women’s rights, a federal appeals court judge, a Supreme Court justice for 27 years and, most recently, as the leader of the high court’s liberal bloc, where she served as a bulwark against an increasingly conservative majority.
"Our nation mourns the loss of a titan of the law," Trump said in a statement. "Renowned for her brilliant mind and her powerful dissents at the Supreme Court, Justice Ginsburg demonstrated that one can disagree without being disagreeable toward one’s colleagues or different points of view."
“Our nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague," Chief Justice John Roberts said. "Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her – a tireless and resolute champion of justice.”
Ginsburg's death comes just weeks before Democrats hope to win the White House and potentially a Senate majority, given Democratic nominee Joe Biden's lead in the polls. But Republicans will hold the Senate at least until Jan. 3, and Trump the presidency at least until Jan. 20, giving them a chance to gain a 6-3 conservative majority on the court.
Trump is expected to nominate a replacement as soon as next week, and Senate Majority Leader Mitch McConnell, R-Ky., immediately vowed to hold a Senate confirmation vote. But it generally takes more than two months to reach that point, which would put Republicans beyond Election Day, when their 53-47 majority is in jeopardy.
If the vote was to happen during the "lame duck" session in November or December, the chances for confirmation likely would depend on whether Trump wins reelection and Republicans maintain their Senate majority. They could plow ahead in defeat up until Jan. 3, but if four Senate Republicans desert the cause, they would fall short.
National Public Radio reported that Ginsburg dictated a statement to her granddaughter shortly before her death, in which she said: "My most fervent wish is that I will not be replaced until a new president is installed."
Democratic presidential nominee Joe Biden agreed. "There is no doubt ... that the voters should pick the president, and the president should pick the justice for the Senate to consider," he said. "This was the position the Republican Senate took in 2016 when there were almost 10 months to go before the election."
A culture war moment
Virtually nothing motivates both sides in America's culture wars more than a Supreme Court vacancy. One that occurs in a presidential election year and gives a conservative president a chance to replace a liberal justice is even more fraught. The reverse was evident in 2016 when Associate Justice Antonin Scalia's death prompted Republicans to block Obama from filling the seat.
The nomination and confirmation process has grown only more contentious since then. Democrats and liberal advocacy groups cried foul at the confirmation of conservative Associate Justice Neil Gorsuch early in 2017. That was nothing compared to the outrage that accompanied Associate Justice Brett Kavanaugh's 50-48 confirmation late in 2018, which followed accusations of decades-old sexual assault that Kavanaugh denied.
Now Trump will select a third nominee, most likely from a recently expanded list of potential justices assembled with the help of conservative groups, including the Federalist Society and Heritage Foundation. The president has lauded his two nominees but has been very critical of Chief Justice John Roberts, whose votes with liberals during the past term on abortion, LGBTQ rights and the DACA immigration program made clear his role as the court's swing vote.
Among those at the top of Trump's list: Amy Coney Barrett, 48, of Indiana, who he nominated to the U.S. Court of Appeals for the 7th Circuit, and Amul Thapar, 51, of Kentucky, a favorite of McConnell's who Trump named to the U.S. Court of Appeals for the 6th Circuit.
Other potential female nominees include Joan Larsen of Michigan, who serves on the 6th Circuit; Allison Eid of Colorado, who serves on the 10th Circuit; and Britt Grant of Georgia, who serves on the 11th Circuit.
Republicans have a 53-seat majority in the Senate, giving them the ability to withstand Democratic opposition. The traditional 60-vote requirement for high court nominees was abolished when Democrats threatened to block Gorsuch’s confirmation, leading McConnell to push through a rules change that allows justices to be confirmed with simple majority votes.
Still, the upcoming battle over Ginsburg's replacement is certain to be intense, with conservative and liberal interest groups poised to spend tens of millions of dollars in advertising and grassroots activity.
Obama entered the fray Friday night, noting that Ginsburg "left instructions for how she wanted her legacy to be honored."
"Four and a half years ago, when Republicans refused to hold a hearing or an up-or-down vote on Merrick Garland, they invented the principle that the Senate shouldn’t fill an open seat on the Supreme Court before a new president was sworn in," he said in a statement.
"A basic principle of the law – and of everyday fairness – is that we apply rules with consistency, and not based on what’s convenient or advantageous in the moment.... As votes are already being cast in this election, Republican senators are now called to apply that standard."
Much of the liberals’ effort likely will focus on moderate GOP senators such as Maine’s Susan Collins, Alaska’s Lisa Murkowski and Utah's Mitt Romney. The two female senators may be wary of risking decades-old precedents such as Roe v. Wade, which legalized abortion nationwide in 1973. Romney was the lone Republican to vote in favor of removing Trump from office during this year's Senate impeachment trial.
Etched in history
Ginsburg etched her name in legal history before President Jimmy Carter named her to the U.S. Court of Appeals for the District of Columbia Circuit in 1980. She won five of six cases argued at the Supreme Court in the mid-1970s that opened doors for women.
"Justice Ginsburg led one of the great lives in the history of American law," Attorney General William Barr said. "She and I did not agree on every issue, but her legal ability, personal integrity, and determination were beyond doubt. She leaves a towering legacy, and all who seek justice mourn her loss.”
While remaining a reliable stalwart for equal rights in her later years, Ginsburg had trouble commanding majorities on the court. As the years passed, she became more vocal in her dissents – delivering five of them from the bench in the 2012 term alone, a record that still stands. The closet in her chambers held a selection of her trademark lace jabots, some reserved solely for those dissents.
When the court struck down the crucial section of the Voting Rights Act by a 5-4 vote in June 2013 – enabling states with a history of discrimination to escape preemptory Justice Department oversight – she likened it to “throwing away your umbrella in a rainstorm because you are not getting wet.”
In recent years, she became a folk hero to the left – the subject of the award-winning documentary "RBG," an opera and a feature-length film, "On the Basis of Sex." Her praises were sung on the “Ruth Bader GinsBlog” and her initials emblazoned on “Notorious R.B.G.” T-shirts. She took great pride in a bobblehead celebrating the highlights of her career, and she helped to assemble a book of her opinions, dissents and writings entitled “My Own Words.”
On the night before her death, Ginsburg in absentia was awarded the Liberty Medal from the National Constitution Center. She was chosen in part because this year is the 100th anniversary of the 19th Amendment to the Constitution, which gave women the right to vote.
This article originally appeared on USA TODAY: Justice Ruth Bader Ginsburg dies, setting up possible nomination fight