What Ginsberg Left Behind

R.I.P Ruth Bader Ginsberg

by Thomas Neuburger

Ruth Bader Ginsberg passed away on September 18 from consequences of her ongoing cancers. According to an NPR report, she dictated this note shortly before her death: "My most fervent wish is that I will not be replaced until a new president is installed."

Which is one of the problems: She could have fulfilled that wish herself, by resigning earlier. She didn't, and now we're dealing with what she's left behind.

The Failure Before

Ginsberg's mother died of cancer the day before Ginsberg graduated high school. Her husband died of cancer in 2010 (during the Obama administration), a condition he had suffered under since the birth of their daughter many years before.

Ginsberg herself was diagnosed with colon cancer in 1999 and treated. In 2009 she was diagnosed with pancreatic cancer and treated. In 2014 she had a stent placed in her right coronal artery. Future bouts of ill health requiring hospitalization followed in 2018, 2019 and 2020. In 2011 she was she was using her job to help cope with the death of her husband; then that she was waiting for Hillary Clinton to be elected in order to be "the closest thing to a chief justice on a liberal court":

"Why didn’t she step down while Barack Obama had the power to replace her? She was waiting: for a justice, as she said, who would resemble her. And although she didn’t admit it, we knew she was waiting for Hillary Clinton to replace Justice Antony Scalia with a liberal, somebody with a stiffer spine for progressive battles than the one Obama had shown. Had there been five liberals after 2016, she would have been the senior liberal in the majority, and able to assign all the liberal decisions. She would have been the closest thing to the chief justice on a liberal court."

She even, in September 2020, officiated at a wedding without a mask.

If this sounds like ego and ambition, it is. Despite her many virtues (and they are many), this failure of Ginsberg's to rise above herself parallels an equal failure of mainstream Democratic Party leaders and their voters to rise above their "feels" and to work for actual policy.

As Alex Shepherd put it, there has been a "growing obsession with celebrity among Democrats, as if celebrity itself could somehow transcend the grubby business of politics. With figures like Ginsburg and Barack Obama, this thinking went, the party could win the day on the back of its leading lights. Those pleading for Ginsburg to retire were brushed off, or branded as sexists." (I accept this criticism if by "Democrats" he means "mainstream Democratic leaders their partisan voters." Progressives, those decidedly not mainstream, understand quite well the flaws in their celebrity figures and their actions.)

I would blame the media for much of this as well. While right-wing media leads Republican voters much more toward policy, liberal media leads voters toward celebrity and "celebrity moments" that may or may not represent and encapsule good policy.

Obama and Ginsberg are excellent examples of liberal celebrity — an elevation that tends to stigmatize and dampen liberal criticism even when criticism is warranted. The passage of the ACA — Obamacare — is a good example of celebrating the celebrity moment at the expense of critical evaluation — "Hurrah for the win," it's media cheerleaders seem to say, while ignoring its flaws, how it missed the moment, and how it led, at least in part, to Trump.

Or, as The Daily Koko put it on Twitter, "The liberal refusal to view their leaders as tools to accomplish agendas, but rather view them as a projection of their own professional ambitions, has caused incalculable damage to even just the liberal project."

This doesn't just indict Party leaders; it indicts Party voters as well, or that large group that votes out of historic or tribal loyalty, people whose support for the Democratic Party is uncritical and automatic.

The Problem Now

That was the failure before Ms. Ginsberg died, the failure to pass her seat to someone at least "not of the Right" (in the sense that the decidedly centrist Supreme Court nominee Merrick Garland was at least "not of the Right").

Instead Democratic leaders and the voters who count on them to act in the interest of the country are faced with an uphill task: to make sure that a President Joe Biden appoints Ginsberg's replacement, and to make sure the next Senate confirms her.

That will involve, of course, making sure Joe Biden wins the November election, not a certainty. But it also involves preventing Senate Majority Leader Mitch McConnell from gaming the process as he gamed the Garland and Gorsuch nominations, holding the Court seat open for nearly a year and giving Obama's nomination to Trump.

Winning will be no small task. Republicans hold 53 seats in the current Senate, which means the Democratic caucus must, first, vote as a bloc (hello, Joe Manchin; hello, Doug Jones), and second, get four Republicans to vote with them to block any nomination prior to the seating of a new Senate in January.(Murkowski and Collins, though opposed to taking up a vote "before the election," have been silent holding a vote during the post-election lame duck session.)

And finally, if Democrats do hold off a Trump nominee until after the election AND if Biden wins in November, McConnell might still control the next Senate as well. In that case, it will still be a fight to confirm a nominee. Line one in my list of Rules of Political Acquisition is, "When Republicans have power, they use it."

Starting on the Wrong Foot Entirely

This leads to a smaller point that leads to a larger one. Democratic leaders, right out of the gate, are starting on the wrong foot entirely, what Peter Daou called "preemptive surrender."

Let's start with Nancy Pelosi. This CNN headline says it all: "Pelosi says she will not leverage government shutdown to avoid Senate vote on court seat".

"None of us has any interest in shutting down government," she announced, saying "that has such a harmful and shameful impact on so many people in our country." she announced "We have arrows in our quiver that I'm not about to discuss right now."

The key word in the CNN headline is "leverage." Democratic leaders have some — or quite a bit, depending on whom you listen to — but they don't want to use it, or use all of it, or even hold the threat of using it as a bargaining chip. A shutdown may not be much leverage — we'll have to let the experts weigh in on that — but imagine if her answer instead had been, "We'll do whatever it takes."

Meanwhile in the Senate, CNN notes that Democratic senators are "all vowing a furious fight to keep the seat vacant until next year." Yet at the same time, Democratic minority leader Chuck Schumer reportedly told members of his caucus on a conference call that "if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year."

Schumer, in other words, threatens Democratic retaliation next year if Republicans attempt to replace Ginsberg this year. That doesn't sound like much of a threat to stop them this year.

In addition, this threat comes from the same Chuck Schumer who unilaterally let a bunch of Trump's judicial nomination pass in the run-up to Brett Kavanaugh's nomination hearing. According to Sahil Kapur, writing in August 2018, the "Senate just cut a deal to fast-track votes starting at 3:45p today on 11 nominations—including SEVEN Trump nominees to be district court judges," and worse, "Schumer got literally nothing for the deal."

Don't blink while looking for that "furious fight." You may miss it.

The Real Solution

The real solution, of course, is for Democrats to pack the Court — to set the number of justices at 13 or more, leaving the six (or five, if the Democrat's "furious fight" succeeds) conservatives in place and adding enough liberals and progressives so that they can undo the massive damage done by the Federalist Society and their conciliatory Democratic enablers.

The Constitution does not set the number of justices; that's left to Congress, which can do what it wants in that regard. Historically, the number of justices has varied from five to ten. The current total, nine justices, was set during the Grant administration.

But will Democrats pack the Court? Will they dare to use the power they will have, if they gain control of Congress, to end this Supreme Court nightmare? Answer now if you wish, but I'm going to wait to see if that "furious fight" emerges.

The Larger Problem

While regaining control of the Supreme Court is a large problem — face it, this isn't about Party; the ideological right-wing is peopled with monsters who have monstrous dreams and desires — this isn't the largest problem the nation faces.

A much greater problem is the credibility of the Democratic Party itself as currently led. How long will people believe that the Party is willing rescue them, when to all appearances ... it just isn't?

The nation suffers many ills, some of them possibly terminal, all wrought by money and the service rendered to money by the entrenched political class. In "normal" times, this process can go on forever, with politicians serving money while people elect them hoping for something better. A compliant media can do much to keep people hoping.

But in times when lives are degrading, people want real change, not just the promise of change, not just a kind of change that doesn't make things worse.

In times when lives are degrading, people look for improvement. The push for Obamacare in 2009, at a time when many people's lives were coming apart, was based on a hope that this time change would matter, this time Democrats would make health care better in America. But Obamacare was false hope; Democrats created health care system that made things better for some, much worse for others, and still left many without coverage — all to serve wealth and their donors.

The change the people got then wasn't what they wanted. But times soon stabilized, 2009 became 2012 and beyond. Evictions slowed and some people saw a recovery while others, who saw their own lives getting worse, watched Obama nightly through MSNBC's star-gazing eyes and settled back, accepting the status quo. The ship motored on.

The "Covid Normal" — Continuous Degradation

But these are different times than any of those. These are times when many people's lives are degrading in a decline promises not to stop. The coronavirus crisis is still with us with no solution in sight.

Moreover, the economic effects — the massive job losses, the austerity both parties advocate in response, the death of millions of small businesses, and the accelerated consolidation of wealth and power by the mega-rich — these will be with us for the next generation, for many of us, the rest of our lives.

A generation of continuous decline cannot produce a "normal" that people can settle into. People will look for answers, and real change. This one may not be able to be papered over by dutiful MSNBC spokes-anchors.

In short, Democratic leaders are struggling today to prove to an unsettled, pain-ridden public that they offer real solutions, and not cosmetics. Yet they've nominated a candidate who will veto Medicare for All despite its great cross-generational, cross-party popularity, a candidate who's still in the 1990s when it comes to marijuana reform, a candidate who's still pro-police, a candidate who's running on a platform with exactly two planks:

"I talk like some guy from the white working class, and I'm not the monster the other guy is."

No wonder this election, like the last one, is closer than it ought to be.

A Party Litmus Test?

And now comes the Ginsberg vacancy. Democrats, as a group, as currently led and cheered on by their media surrogates, are put to the test once more. Will they put up a "furious fight" or just the show of one? And will the public notice if they don't?

Perhaps both answers will be No. But at some point the Party will fail one of these tests in a way that actually matters, and then only tribal Democrats will vote for them, people for whom the Democratic Party is part of their blood. When that black day occurs, the nation will take a turn it cannot turn back from, and face just three paths only:

• More or less continuous Republican rule by increasingly smaller voting populations
• Rule by a real third party that replaces the Democrats
• The kind of civil chaos and disruption that no one wants to live through

There's only one good choice among those three, and none of them have the Democratic Party's name on it. But whichever path the nation finds itself on, today's Democratic leaders will have led us to it.