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Ginsburg’s Death Sparks Renewed Calls for Reforms to the Supreme Court

As the GOP moves to seat a new nominee, some lawmakers call for ending the filibuster and expanding the court.

Members of the Georgetown University Women's Rowing Team visit a makeshift memorial in honor of Supreme Court Justice Ruth Bader Ginsburg in front of the Supreme Court on September 19, 2020, in Washington, D.C.

As mourners left flowers and signs outside the U.S. Supreme Court building overnight following Justice Ruth Bader Ginsburg’s death Friday evening, President Donald Trump and Republican Senate Majority Leader Mitch McConnell vowed to force through her replacement with just weeks until the November election while progressive lawmakers and organizers promised to fight the GOP’s hypocritical effort to shift the court right.

Acknowledging Ginsburg’s dying wish that she “will not be replaced until a new president is installed,” Rep. Alexandria Ocasio-Cortez (D-N.Y.) declared that “we can, and must, fight.” And that fight to “preserve our democracy and move forward,” the congresswoman said, “will require each and every one of us, from the streets to the Senate, to grow in courage, strength, and strategy.”

McConnell — who in 2016 led Republicans’ months-long blockade of Merrick Garland, President Barack Obama’s nominee to the high court, citing the upcoming presidential election — said Friday, with less than two months until the next election, that the Senate will vote on Trump’s nominee. The president took to Twitter Saturday to urge the GOP-controlled upper chamber to approve his unannounced pick “without delay.”

The majority leader and president’s position — though widely expected, particularly given their ongoing joint effort to remake the federal judiciary by ramming through right-wing lifelong appointees — provoked pushback from top Democrats, including the party’s presidential nominee, Joe Biden. The former vice president said that “voters should pick the president and the president should pick the justice to consider.”

While noting Ginsburg’s legacy as a trailblazing advocate for equality and justice, Biden and congressional Democrats called on elected Republicans to follow their own made-up rules. Referencing the majority leader’s 2016 remarks about Garland and giving “the people a voice,” Sen. Bernie Sanders (I-Vt.) said in a statement Saturday that now, “McConnell is cementing a shameful legacy of brazen hypocrisy.”

Sanders added that “thankfully not all Senate Republicans agree” with plowing ahead to confirm a Trump appointee, noting that Sen. Lisa Murkowski (R-Alaska) reportedly said Friday shortly before Ginsburg’s death that she is against an appointment this close to an election and “would not vote to confirm a Supreme Court nominee.”

Four Senate Republicans would have to join with all Democrats to block Trump from appointing a third justice to the court — following Neil Gorsuch in 2017 and Brett Kavanaugh in 2018. Although Sen. Mitt Romney (R-Utah) didn’t share his position on a vote in his statement about Ginsburg’s death, former Utah politician Jim Dabakis tweeted Friday: “A high-level Romney insider tells me Mitt Romney has committed to not confirming a Supreme Court nominee until after Inauguration Day 2021.”

As Sanders pointed out, other GOP lawmakers have previously said they are opposed to a confirmation vote this close to an election — specifically, Sen. Chuck Grassley (R-Iowa), Susan Collins (R-Maine), and Lindsay Graham (R-S.C.). According to Sanders, “The right thing to do here is clear. The Republicans in the Senate know it, and many of them have stated it clearer than I could. We should let voters decide. Period.”

Like Romney, Collins didn’t address the new battle over the empty court seat in her Friday comments about RBG, but she has been pilloried for the pivotal role she played in Kavanaugh’s confirmation and faces a tight reelection race, making her a key target for those who support honoring the justice’s dying wish or working to elect Biden.

Although Graham had said in October 2018 that “if an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait to the next election,” the Senate Judiciary Committee chair seemed to shift his position Saturday:

David Sirota, senior adviser and speechwriter Sanders’ 2020 presidential campaign, suggested a strategy in his newsletter Saturday: immediately announcing a progressive primary challenge to Senate Minority Leader Chuck Schumer (D-N.Y.), who will be up for reelection in 2022. Although Schumer on Friday stated his opposition to confirming a new justice by quoting McConnell’s comments from 2016, Sirota noted the minority leader’s record on fast-tracking Trump judges.

“That means Schumer needs to face maximum pressure every single day to use all possible power that his caucus has — and it has power — to stop a Trump appointment,” Sirota argued. He explained that “the Senate runs on the unanimous consent system — which basically means that to do its most basic business, all senators must consent. In this situation, Senate Democrats have the power to use that system to grind everything to a halt.”

Progressive organizers and political commentators also raised alarm about Trump’s latest list of potential nominees — warning that, as Bill Blum wrote for The Progressive, “if Donald Trump gets to appoint a single additional justice to the court, our children and our grandchildren will be paying an epic price for decades to come.”

Planned Parenthood president Alexis McGill Johnson said in a statement that “the fate of our rights, our freedoms, our healthcare, our bodies, our lives, and our country depend on what happens over the coming months.”

With a nod to RBG’s record on reproductive rights as well as Republican efforts to appoint justices who support overturning Roe v. Wade and cutting off access to abortion, she added that “it would be an absolute slap in the face to the millions of Americans who honor and cherish Justice Ginsburg’s legacy if President Trump and Mitch McConnell were to replace her with someone who would undo her life’s work and take away the rights and freedoms for which she fought so hard.”

Biden’s running mate, Sen. Kamala Harris (D-Calif.), responded to RBG’s death by underscoring the importance of voting in the general election. In a Saturday email to supporters, the senator wrote that she and Biden “know, like you do, that the most important thing we can do to protect that legacy is not just winning the White House, but electing a Senate majority that will confirm fair-minded Supreme Court appointees who believe in equal justice under the law.”

As Common Dreams reported Friday, given concerns about the coronavirus pandemic and GOP efforts to limit election participation, progressive advocacy groups including Stand Up America are encouraging Americans to “vote as early as possible, whether they do that by mail or in person.”

Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights, voiced her opposition to the Senate confirming a Trump appointee in a statement Friday night and suggested on MSNBC that the justice’s death could energize voters:

Ginsburg’s death and the political battle it sparked also renewed calls for reforming the Supreme Court. Elie Mystal, The Nation’s justice correspondent, wrote just after midnight that “should Democrats ever hold that power again, they must act. The addition of two justices is simply a proportional response necessary to right the wrongs committed by McConnell. The addition of 10 justices, as I have advocated, puts the Supreme Court on a path toward long-term reform.”

“This must be our fight now. We must do everything we can to stop McConnell from filling Ginsburg’s seat and, however that turns out, we must retake political power and reform a Supreme Court that has been irrevocably broken by McConnell’s ongoing hypocrisy,” Mystal continued. “That fight seems daunting, but it is no more difficult than the battles Ginsburg herself fought and won over the course of her storied career.”

University of Michigan professor Juan Cole, concurred, writing that “if the Democrats win both the presidency and the Senate, they must do something about the dictatorship of the minority on the court, and they ought to come in prepared to introduce serious reform so that our laws reflect the will of our 330 million people rather than that of a few corrupt billionaires allied with hypocritical religious fundamentalists.”

At least one progressive in Congress issued a similar call in the wake of Ginsburg’s death. Sen. Ed Markey (D-Mass.) — who just pulled off a major primary win tweeted Friday night that “Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”

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