RBG Deserves Better Than Liberal Defeatism

The GOP’s hypocritical effort to replace her isn’t cause for despair. It’s grounds for a fight.

U.S. Supreme Court Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg arrive for services for former U.S. Supreme Court Chief Justice William Rehnquist in 2005. Photo: Win McNamee/Getty Images.

Among the anguished reactions to the death of the American hero Ruth Bader Ginsburg on Friday night was a category that concluded, essentially, “We’re screwed.” Liberal commentators quickly and grimly prognosticated doom: Donald Trump nominating a conservative replacement to Ginsburg’s Supreme Court seat, Mitch McConnell’s Republican-led Senate confirming that replacement, Roe v. Wade being doomed, and the court locking in a conservative majority for years to come — all before voters have a say.

The despair is understandable. This has been a brutal year, and a brutal man is the president. People are beaten down to the point that pessimism just looks like realism. There is absolutely no reason to believe that either Trump or McConnell care about norms, decency, or avoiding even the most blatantly apparent hypocrisies. Any faith in the rest of the Republican congressional ranks to constrain their leaders in any way more meaningful than anonymous expressions of concern or post-departure book deals would be similarly delusional.

So, yes, the despair is understandable — but wrong.

First, it’s a disservice to Justice Ginsburg. Part of what distinguished her was a determination to stand up and fight, even when the battle seemed unwinnable. On her deathbed, Ginsburg dictated a final statement to her granddaughter: “My most fervent wish is that I will not be replaced until a new president is installed.” The very least that liberals and progressives could do to honor her now is to take that wish seriously, and start thinking strategically about how to achieve it, rather than throwing in the towel while her body is still warm.

More importantly, the defeatism is self-fulfilling. We know Trump and McConnell will do everything in their power to replace Ginsburg before the election, but it is not a foregone conclusion that they’ll succeed. It’s true Democrats don’t have the numbers to stop a united GOP. At first blush, it looks like all they have on their side is a political norm, and a flimsy one at that — the so-called “McConnell Rule,” which militates against confirming a new Supreme Court justice in a presidential election year. (McConnell, of course, is now peddling a revisionist interpretation that limits its application to when opposite parties control the White House and Senate.)

But what’s really at stake for Republicans is something more than adherence to a norm — it’s an adherence to their own professed convictions. To take a highly public stance against a given action, then turn around and do the precise opposite the moment it benefits you, violates not just a norm but a taboo — the taboo against rank hypocrisy. It’s a taboo that retains some potency even in this deeply partisan and cynical climate, because it’s a function of human psychology, rather than Beltway convention.

We know Trump and McConnell will do everything in their power to replace Ginsburg before the election, but it is not a foregone conclusion that they’ll succeed.

This is not to say the taboo against blatant hypocrisy is inviolable — politicians break it all the time — and we already know it holds no sway over McConnell. But he needs to bring 50 other GOP senators along, including some who we know are still capable of some degree of shame, or at least squeamishness, when asked to go along with deeply unpopular stances.

It is a gift to Democrats that some of those senators went on record during their blocking of Barack Obama’s Supreme Court nominee Merrick Garland in 2016, or even more recently, claiming they’d never do the very thing they’ll now be asked to do. Some of them said it on video. One of them said it just moments before the news of Ginsburg’s death Friday. (The Washington Post has a helpful rundown of these statements.)

The thing about a taboo is it must be invoked and enforced to retain its potency: The hypocrisy must be named and punished. When elected officials are hypocritical, the media must shame them; their opponents should pillory them; their supporters should not escape being put in an awkward position. And those elected officials should fear for their political futures at the polls. Hypocrisy has always been rampant in Washington, but it’s usually easier to hide than this — and when you can’t, it still doesn’t sit well with a lot of voters.

To pretend that norms will constrain Trump or McConnell would be folly, yes. But for Democrats, the media, and the public to concede the ground in advance is to do their dirty work for them. To frame what should be a career-dooming level of hypocrisy as the obvious play, the shrewd political move, is to stand down and wave Senate Republicans through what should be a punishing political gauntlet. It lends credence to excuses like “that’s just politics,” or “the other side would do the same.” It lets them off the hook.

Roe v. Wade may or may not go down, but it sure as hell shouldn’t go down without an epic fight. Ginsburg’s dying request was not for hopeless cynicism, nor starry-eyed “this is not a moment for politics” idealism. Her last, fervent wish requires a clear-eyed plan of action.

The New York Times’ Jamelle Bouie had the right idea. Democrats, he suggested, should pursue a two-track strategy that insists on tying Republicans to their 2016 words while at the same time threatening devastating retaliation, in the form of court-packing, should they go back on those words. “You want no norms?” the Democrats should say. “We’ll show you what that looks like when we’re in charge.”

Graham said on camera in 2016: “I want you to use my words against me. If there’s 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.” Why deny him that modest request?

Mourn Ginsburg, yes. Mourn, weep, tear at your hair, and lament the state of our country, our politics, and our world. And then get ready to fight for her.

Senior Writer, OneZero, at Medium

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