Justice, Justice Shall You Pursue

7 mins read

First things first. Would you like to read about Ruth Bader Ginsburg’s early life (and a bit about the history of women and law)? I’ve made the first 9 chapters of one of my books—Ginsburg’s early life—available free.

Ruth Bader Ginsburg died at the start of the Jewish New Year. On her office wall, in beautifully drawn Hebrew letters, was the command from Deuteronomy, which translated, “Justice, Justice, shall you pursue.”

Her death hit me hard, as I’m sure it did many of you.

Now it’s up to us to pursue justice in her name.

Within hours of Ginsburg’s death, McConnell showed himself as the hypocrite that he is. 

McConnell is not interested in rule of law. Rule of law at its most basic means the laws are clear, publicized, and stable, and applied evenly. Democracy requires rule of law. The modern Republican Party has no interest in democracy, and anyone who does must vote them out.

Some people argued that in rushing a nomination through after voting has started, McConnell is not actually violating rule of law:

Nonsense. Whether it is a Senate rule that McConnell can change at his discretion or a law passed by Congress is an immaterial distinction. For example, courts have rules that can be changed at any time by the court. What would happen if the court changed the rules depending on who walked in the door?

Congress is no different, particularly in this case, when the issue is interpreting the Constitution. McConnell interprets the Senate duty one way when a Democrat is president, and another way when a Republican is president. That is not how rule of law works. Until McConnell, that was never how Supreme Court appointments were made. There’s a reason historian Christopher Browning called McConnell the gravedigger of democracy.

I agree with this. The race is steady. The way Trump governs is to evoke strong emotions. He evokes euphoria in his followers and rage in his critics. I think that explains why the race is so steady. People know how they feel because they’ve been feeling it intensely now for years. And Biden is way up in the polls.

I don’t know how this will play out, but pushing through a Supreme Court justice now will dominate the conversation between now and the election. 

Most likely, the Republicans will get another Supreme Court seat. This is not a disaster—as long as the Democrats win the Senate. 

Here’s why it matters so much. If the Democrats control Congress and the White House, they can make Washington, D.C. and Puerto Rico states, giving the Democrats an additional four Senators, and increasing the number of Democratic members of the House. 

If the Democrats control Congress and the White House, they can regulate elections, and end gerrymandering, which will put another nail into the GOP minority-rule coffin.

We’ve had 9 justices since the country was a small rural backwater. There is a good argument for increasing the number. Just don’t call it court-packing. 

The way to increase the number of justices without an arms race is to pass legislation allowing Biden two Supreme Court picks, while allowing two new justices to be appointed over the next three presidencies, which means whoever wins the next few elections gets appointments. 

Term limits requires a Constitutional amendment, so it’s much harder. On the other hand, the Constitution does not specify the number of justices.

The idea was for judges to be able to do what was right without worrying about reelection. It was supposed to put the court above politics. At times it has actually worked. Desegregation would have ben harder if federal judges had to answer to voters.

Good idea. If only I could go back and tell Hamilton a few things. Like: “Dude, you had some real good ideas, but the electoral college was not one of them.”

It’s possible that the Senate Democrats will find a way to prevent Trump from making an appointment. It’s also possible that other Republican Senators will follow Susan Collins’ lead in saying that the next president should nominate Ginsburg’s replacement. It’s also possible that Susan Collins is just doing her ‘say whatever she needs to say at the moment’ thing, and after a private meeting with McConnell, she’ll do his bidding.

It seems to me there are no good options for Romney. This is because Trump controls the GOP base—but the GOP base is a shrinking percentage of the general electorate. Go against Trump: incur the wrath of Trump’s “base.” Tie yourself to Trump, incur the wrath of a majority of Americans. Either way, it’s hard for a Republican to win a majority of votes nationally because their demographics are shrinking.

If there is a 4-4 split, the lower ruling stands. It is very unlikely that the Supreme Court will decide the next president. This can only happen in a very close election where there is a non-frivolous cause of action. The Secretaries of States in each state certifies its own election. I expect lawsuits, but Biden and the Democrats have lawyered up. It is not possible that the Supreme Court will attempt to overturn the results of an election to keep an unpopular president in power without a legal basis. 

Rest in peace, Ruth Bader Ginsburg. May your memory be a revolution.

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Teri has written novels, short stories, nonfiction for both young readers and adults, and lots of legal briefs. She is currently working on a book on disinformation to be published by Macmillan Publishers. Her political commentary has appeared on the NBC Think Blog and CNN.com. Her articles and essays have appeared in publications as diverse as Education Week, Slate Magazine, and Scope Magazine. Her short fiction has appeared in the American Literary View, The Iowa Review, and others. For twelve years she maintained a private appellate law practice limited to representing indigents on appeal from adverse rulings. She believes with the ACLU that when the rights of society's most vulnerable members are denied, everybody's rights are imperiled. She also believe with John Updike that the purpose of literature is to expand our sympathies. Teri lives with her family on the beautiful central coast in California.

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