Voting in Response to RBG’s Death is Not Enough

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Photo by Gayatri Malhotra on Unsplash

Ever since the news broke Friday night of the death of Supreme Court Justice Ruth Bader Ginsburg, I have seen dozens of social media posts urging people to vote in November as a way to beat back efforts to hastily fill the late Justice’s seat.

I hate to be the one to tell you this, but you’ve already lost.

This is the moment Senate Majority Leader Mitch McConnell and others have been waiting for, and they’re not going to let it slip away. Senator Mitt Romney — who many had hoped would be the third voice of reason in the Republican caucus — announced his approval to consider a nominee before the election, solidifying the confirmation process will proceed.

If there was ever a call to action to vote to stop this appointment, it was four years ago.

Remember in 2016, when — even after McConnell hijacked President Barack Obama’s ability to appoint a successor to the late Justice Antonin Scalia — some people still didn’t love Hillary Clinton enough to vote for her?

Or those who said there was no “real difference” between the candidates?

Or others still who were mad Bernie Sanders was seemingly denied the nomination by Clinton and her allies in the Democratic Party?

So, in response, millions of likely Democratic voters stayed home, or voted for a third-party candidate in protest, handing the White House to Donald Trump, despite his losing the popular vote by three million.

Now, four years later, Trump has appointed two justices to the high court.

Perhaps more consequentially and alarming, nearly a quarter of all 792 federal judges around the country are Trump appointees — the most of any first-term president in 40 years. With the help of McConnell and other willing Senate accomplices, they remade the federal judiciary in their image and there is no way to undo it — only to stop it from growing.

If Trump gets to appoint a third justice, it will be the most by a modern president since Ronald Reagan and most of any first-term president since Richard Nixon.

I hope those people who didn’t “love” Clinton enough are happy now.

This was always the plan, though. The alteration of the federal courts has been the Republican endgame. Following the defeat of Robert Bork for the Supreme Court in 1987, the conservative movement in the United States rallied around a unifying goal, not only to protect the high court but to create and cultivate a deep bench of like-minded jurists throughout the entire federal court system as well as thousands of state and local judgeships throughout the country.

Groups like the Federalist Society and the Heritage Foundation have enabled law students, practicing attorneys, clerks, and judges to gather regularly, share ideas, and create an environment in which members of these influential organizations are presented with a wealth of opportunities.

With the help of a conservative sphere of influence, including talk radio and Fox News, they elected members to local, state, and federal offices. They took their time, planned carefully, and kept their eyes on the prize. Despite anything else at any given point — wars, terrorism, economics, racial justice, climate change, and a global pandemic — nothing was important to conservative thought leaders, elected officials, and many Republican voters as filling judges’ robes.

As Linda Greenhouse, the famed Supreme Court reporter for The New York Times pointed out during the fight over Brett Kavanaugh in 2018:

… conservatives emerged from the Bork battle determined to win the war. They are succeeding in doing something that progressives are simply bad at: playing the long game…

Greenhouse was right then, and she is right now. While Democrats have been planning for the next election, Republicans have planned for the next generation, and they’re winning.

People seem shocked that Romney — who voted to remove Trump in the president’s impeachment trial — is OK with filling Ginsburg’s seat this close to the election, despite McConnell’s hypocrisy. I feel compelled to remind them the Utah Senator has never made his conservatism a secret, especially when it comes to judgeships. Confusing his hatred for Trump with opposition to this lifetime appointment would be foolish.

The seat recently held by Justice Ginsburg is gone. Accept it.

By January, there will be a solid six to three conservative majority on the court with no sure opportunities for reversal anytime soon. The oldest conservative justice, Clarence Thomas, is 71 years old. The oldest liberal justice, Stephen Breyer, is 81. It may only get worse.

All hope is not lost, though.

Encouraging massive voter turnout in response to the death of Ginsburg is good, even if it won’t solve today’s problem. It will, however, fend off some of tomorrow’s issues. Democrats need to start thinking like Republicans by mounting a nationwide effort akin to the success of the Federalist Society and others. A sustained, well-coordinated effort to fill judicial appointments over the next generation is what is needed at this point in history.

There is no better way to honor the life and legacy of Ruth Bader Ginsburg than to be able to look back in 30 years and point to this moment as when we decided it was time to have more women — and men — like her on the court.

Ross M. Wallenstein is Vice President of J Strategies, Inc., a communications and government relations firm with offices in New York City, Albany, and Boston.

Previously, he was an aide to former US Representative Gary L. Ackerman and served in the administration of former New York governors Eliot Spitzer and David A. Paterson.

Find him on Twitter @RossWallenstein

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