In normal times, the country would pause to mourn the passing and celebrate the life of a brilliant, brave and inspirational trailblazer.
But it’s 2020.
A statement from former Nevada U.S. Sen. Harry Reid reflected the double punch of Supreme Court Justice Ruth Bader Ginsburg’s death Friday night at age 87.
Ginsburg “represented a level of greatness rarely seen in our country” and her “inspiring story and courageous leadership transcend law, politics and government,” Reid said.
“She forever changed our country, not to mention the Supreme Court,” the former Senate Majority Leader said. “The impact made by Justice Ginsburg on women’s leadership, equal rights and basic fairness is without parallel. She’s been an inspiration to women, girls, LGBTQ individuals and people everywhere, and she will continue to inspire for many years to come.”
Then Reid acknowledged the divisive battle coming to an already polarized and rattled nation.
“Each Republican senator must now demonstrate whether previous protests about filling Supreme Court seats during an election year were sincere beliefs or a shameless example of the cynical hyper-partisan grandstanding and obstruction that Americans detest from Washington,” Reid added.
If the president and Senate Republicans push forward to fill the court vacancy with an election less than seven weeks away, Reid said, “they risk delegitimizing themselves and their party even more.”
Republicans look ready to take the risk.
“President Trump’s nominee will receive a vote on the floor of the United States Senate,” Senate Majority Leader Mitch McConnell said in a statement Friday.
That was then
In February 2016, after the sudden death of Justice Antonin Scalia, and roughly eight months before the presidential election, McConnell said, “The American people should have a voice in the selection of their next Supreme Court Justice” and so “this vacancy should not be filled until we have a new president.”
In another statement in February 2016, McConnell said “the nomination should be made by the president the people elect in the election that’s underway right now.”
In March of 2016, more than seven months before the 2016 election, Barack Obama nominated Merrick Garland to fill the vacant court seat. McConnell refused to allow Garland to even have a hearing, often saying the next justice should not be seated until the “voice of the American people” had been heard in the election.
It was a mantra echoed by McConnell’s Republican senators, including Nevada’s Dean Heller.
“Nevadans should have a voice in the process,” Heller said in February 2016, a statement that was later clarified by a Heller spokesman to confirm Heller meant the Senate should wait until after the 2016 election.
South Carolina Republican Sen. Lindsey Graham, now the chairman of the Senate Judiciary Committee which holds hearings on Supreme Court nominees, was among the most ardent advocates of the Republican position that a seat should not be filled with an election nearing.
“I want you to use my words against me,” Graham said in March 2016. “If there is a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said ‘let’s let the next president, whoever it might be, make that nomination,’ and you could use my words against me and you’d be absolutely right.”
Democrats and their allies are already obliging. They’re also pointing to the 2016 statements from McConnell and other Republican senators and charging them with hypocrisy for being eager to move ahead with a nomination less than two months before an election.
McConnell says circumstances are different. When Obama nominated Garland, the White House was controlled by one party and the Senate by another. Now, Republicans control both so the confirmation should go forward, McConnell contends.
Having successfully shut out Garland’s nomination, and after Donald Trump became president, McConnell and Senate Republicans confirmed Neil Gorsuch to fill Scalia’s seat on the court. They later confirmed Brett Kavanaugh to fill the seat left open by the retirement of Anthony Kennedy. Another Republican-appointed justice would give the right a 6-3 majority on the court.
Both Trump nominees were confirmed with razor-thin margins in the Senate, an outcome made possible by McConnell removing the 60 vote rule from Supreme Court votes so that nominees can be confirmed by a mere majority.
As Senate Majority Leader in 2013, Reid had already deployed the so-called “nuclear option” removing the filibuster from confirmations of lower court nominees.
In his statement on Ginsburg’s passing Friday, Reid said “Democrats must do everything in their power” to stop Republicans from rushing to install a Supreme Court Justice.
But it’s not clear what if any power Democrats have in the process.
Republicans control the Senate 53 to 47. Accounting for any tie-breaking vote by Vice-president Mike Pence, four Republicans would have to vote with all the Democrats (and the two independents) to block a nominee.
‘A devastating loss’
In their statements on Ginsburg Friday, Nevada’s Democratic senators, like many of their Democratic Senate colleagues, avoided the looming battle, and confined their remarks to praising the justice.
“Ruth Bader Ginsburg was a force for justice,” said Sen. Jacky Rosen. “From her role in the fight for gender equality, to a storied legal career, to serving as a lion on the bench of the United States Supreme Court, she used every ounce of her ability to give voice to the voiceless and help build a more equitable and just world. I share in our nation’s grief, and pledge to fight tirelessly to see that the monumental and historic work of Justice Ginsburg is honored for generations to come. May her memory forever be a blessing.”
“Justice Ginsburg was a pioneer, an icon and a fighter in every sense of the word,” said Sen. Catherine Cortez Masto.
“She earned a law degree while raising a toddler, fought for gender equality in countless male-dominated courtrooms and spent 27 years serving the American people on the nation’s highest court. She has inspired countless women, including me, to break down barriers and claim their seats at the table. Her contributions to the body of American law, from her fight for gender equality to her defense of voting rights, are surpassed only by the legacy of love she instilled in her children and extended family,” Cortez Masto said.
“This is a devastating loss for the Supreme Court and for our country.”