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Beckman: History Might Not Be So Kind to RBG

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By Hank Beckman - 

As if 2020 hasn’t already provided us with an unusually high number of shocks to the system, the death of Supreme Court Justice Ruth Bader Ginsburg comes along just as a presidential election was heating up in a nation already deeply divided along partisan lines.

Not since the terrorist attacks of 9-11-01 have we suffered a year that quite matches 2020 in terms of earth-shaking events inflicting fear and uncertainty on the American people.

An impeachment process that was completely partisan and categorically lacking in any criminal activity by the president, a global pandemic with no end in sight and constant rioting in the name of the latest reprobate shot by the police have hit us like a brutal three-punch combination.

Into this already toxic scenario we now have to wrestle with replacing a Supreme Court Justice; and not just any Justice, but one whose replacement could tip the court to the right for a generation.

As many pundits have been quick to point out, Ruth Bader Ginsburg was a significant figure in American jurisprudence, her rise through the legal system coming as it did when women were about as rare as unicorns on the bench and in prominent law firms.

Although serving as a dependable leftist vote on the bench, she was noted for her ability to reach across the political divide and was famous for her close friendship with Antonin Scalia, who could hardly have been more different in his judicial philosophy.

It’s understandable that her admirers eulogize her as a figure above and beyond the status as just another sitting Justice, and to question her judgement before she is even buried will no doubt strike them as churlish.

But like every other public figure in government, living or dead, Ginsburg’s judgement is fair game for people to interpret as they see fit, just as we’ve done with every other governing figure since the nation’s founding.

To be blunt, her decision to hold onto her seat until someone replaced Donald Trump in the White House cannot speak well of her judgement in advancing the progressive cause that the left supports and that she seemed to care deeply about.

Ginsburg’s supporters insist that her dying wish was to be replaced by someone other than Trump. Whether or not she actually communicated this to her granddaughter is open to debate. In this era of hyper-partisan political discourse, no one should be surprised if it’s a bit of an exaggeration—or outright lie—but let’s be charitable and accept it as truth.

First, with all due respect to her memory, it was arrogance personified to assume that her service to the country, however significant, entitled her to pick which president got to nominate her successor. Article ll, Section 2 couldn’t be more clear; the president shall appoint Justices with the advice and consent of the Senate. The personal feelings of an aging jurist, however much she meant to her admirers and political party, count for nothing. (And we should all be disturbed at the continual reference to the vacancy as “Ginsburg’s” seat on the Court. The seat belongs to the American people; we don’t do the royalty thing in this country)

Ginsburg’s second mistake was harboring unrealistic expectations about her own mortality. Harsh as it may sound, it was evident for many years that she wasn’t long for this world. Her public interviews and at least one group SCOTUS photo of her slumped over in apparent agony could lead to no other conclusion.

She had her first brush with the dreaded “C” word in 1999, when she was diagnosed with colon cancer; she was already already in her late sixties at the time and though she survived through surgery, chemotherapy, and radiation treatment, it wouldn’t be her last battle with the dread disease.

In 2009, she again underwent cancer surgery, this time for pancreatic cancer. Though the survival rates for pancreatic cancer often predict a quick exit from this world, Ginsburg beat the odds and lasted about 11 years.

But in 2018, during treatment for a fall she suffered, she was diagnosed with lung cancer, again undergoing surgery. Finally this summer, her pancreatic cancer returned, and this time the grim reaper wouldn’t be denied.

It is perhaps unfair to find serious fault with Ginsburg’s decision to forge ahead after her first bout with cancer. It even be described as admirable, if for no other reason than to serve as an example to others facing the disease.

But the second diagnosis came a decade later, and involved a type of cancer typically more deadly than an early-diagnosed colon cancer. If her motivation really was to make sure her seat on the court went to another liberal, she should have retired then, when President Obama still had a majority in the Senate. Someone in their late seventies suffering their second bout of cancer can’t be confident of longevity; the actuarial tables are what they are.

By the lung cancer diagnosis in 2018, it was too late. By then, assuring a liberal on the court was an extreme long shot, to say the least. Ginsburg essentially bet that against all reasonable expectations she would outlast the Trump presidency. People lose bets all the time; it’s why they call it gambling.

She also underwent a drastic change of heart about the propriety of a president nominating a Supreme Court Justice in an election year.

When Merrick Garland was nominated by Barack Obama in 2016, Senate Majority Leader Mitch McConnell refused to bring the nomination to the floor or hold hearings on the grounds that it was not fair to the American people to install a Supreme Court Justice—a lifetime appointment—nominated by someone who would soon be leaving office.

Then Ginsburg urged the Senators to do the jobs they were elected to do, saying, “That’s their job. There’s nothing in the Constitution that says the President stops being President in his last year.”

But just before she died, she apparently had a change of heart, or so we’re told. She decided that the Senate could hold off for a while before deciding on a new justice. I guess the old saying about a girl being entitled to change her mind applies here.

Of course, Mitch McConnell and his Republican colleagues are also free to rethink their misgivings about appointing a justice in the middle of a presidential election.

It can be argued that the situations are significantly different. Obama was at the end of his time in the White House; Trump may very well be reelected. A fair point can also be made that when Garland was appointed, the Senate was in Republican hands; he might not have been approved even if McConnell had allowed a hearing and a vote.

Moreover, if the election is contested and the court has to get involved, as it did in 2000, it would be a disaster of epic proportions for the decision on the presidency to be left hanging by 4-4 tie. What happens then is anyone’s guess.

As for the Democrat’s charge of hypocrisy, there are any number of quotes from Democrats from four years ago demanding a fair hearing for Garland. These same people seemed to have suddenly lost their appetite for swift action; no doubt your favorite conservative has spared no effort to remind you of this change of heart.

At this point, Amy Coney Barrett is a strong favorite to replace Ginsburg. If she winds up being the deciding vote to overturn Roe v. Wade, the Notorious RBG’s steadfastness in the face of serious disease might not look so noble and heroic to future liberal historians. (most historians; let’s be honest)

She might be portrayed as just another self-centered political operative, concerned with her own legacy, no matter the cost to the people she was supposed to be fighting for.

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