One week ago today, the U.S. lost an inspirational leader and amazing woman. Supreme Court Justice Ruth Bader Ginsburg challenged norms throughout her life, brilliantly defending men against discrimination as part of a long-term strategy to build a precedent for why women should not be legally discriminated against on the basis of their sex. 

Within hours of the announcement of her death, Senate Majority Leader Mitch McConnell stated that the Senate would vote on whomever President Donald Trump nominates to fill the now vacated seat. Unsurprisingly, this led to a disagreement, split primarily along ideological lines, about whether Trump should appoint a nominee or if it should be delayed until after the November election. Senators—among other politicians and pundits—have come out in support of one path or the other. 

There is much to be said about Ginsburg, not the least bit of which is that her dying wish was for her replacement to be nominated after the election. Furthermore, within days of her death, the devastating political polarization and blind partisan obedience within the Republican Party has only been exacerbated, with self-serving actions taking the place of remembering and honoring Ginsburg’s life and service. 

Representatives, including Republican Rep. Jim Jordan of Ohio, have cited the Constitution as justification for why Trump ought to nominate the next Supreme Court justice. As such, it is appropriate that we engage in a conversation about the nature and validity of these statements and how they have transpired during one of the most contentious elections in recent memory and the challenging circumstances brought on by the pandemic. 

Professor Emeritus of Law and Adjunct Professor in Political Science at Case Western Reserve University, Jonathan Entin was one of Ginsburg’s first clerks in 1981 when she was a judge for the U.S. Court of Appeals for the District of Columbia Circuit. He offered insight regarding the discussions being held around her death, as well as the logistics of her replacement, given his relationship with her as well as his professional expertise in constitutional law. 

“What’s going on now has nothing to do with the law,” Entin commented. “It’s about judgement.” 

Entin elaborated to say that in law, as well as every other area of life, an individual may have the authority or right to do something, but that doesn’t mean they should exercise that authority or right. 

A prime example of Entin’s argument rests in the Republicans’ treatment of Barack Obama’s nomination, Merrick Garland, after Justice Antonin Scalia died in February of 2016. That is, when the GOP-controlled Senate refused to carry out their constitutional duty to “advice and consent,” which is the term for their power to vote to confirm presidential appointments such as Supreme Court justices. This 2016 Republican-led Senate suggested that nominations should be postponed in an election year to amplify the people’s voices. Well, four years later, and less than 40 days until the election, those same politicians have reversed their position.  

Cue a call of “hypocrisy.” Not only for these representatives who have changed stances merely because of their party’s current position, but because many Republicans suggest that if Democrats were in the same situation, they would push through a nominee. 

However, for all these representatives who demand a commitment to precedent and norms, history is not on their side. In the 2018 book “How Democracies Die,” two prominent political scientists demonstrate that 2016 was the first time in history when the Senate refused to consider a Supreme Court nominee. Thus, this is not merely a partisan debate. Rather, in 2016, our senators abandoned congressional norms, and continue to do so today.

This is not to say that there hasn’t always been some level of controversy with Supreme Court nominations, especially considering the court’s power and reach. When a president has the opportunity to nominate a justice, they are influencing politics for decades beyond the end of their term. And now, with no overlap between the most conservative Democrats and the most progressive Republicans, judicial appointments are even more contentious. The Trump Administration has devoted a great deal of energy into appointing young and conservative judges at each level in order to extend their reign. 

It was different with Ginsburg. While considered one of the more progressive justices on the court, she was nonpartisan. That is, Ginsburg respected that people held different beliefs and interpretations of the law, but that made them no less deserving of rights, opportunities or consideration. Perhaps the most evident example of this respect was the high esteem in which she held her colleague and dear friend, Antonin Scalia, a staunch conservative. 

In addition to her professionalism and brilliance, Ginsburg was an inspiring mentor. While in law school, many of Entin’s professors tried to convince him to apply for clerkship positions. Considering a clerkship to be a mere way of delaying adolescence (“which I had done just fine on my own,” he added), Entin fabricated a brilliant plan to only apply for positions he was sure to never be offered. Unfortunately, his plan was foiled when he received a call from Ginsburg, who was, at the time, waiting for confirmation for a circuit court position. Entin flew to New York City to be greeted at Ginsburg’s front door by her 15-year-old son saying, “I was going to ask you why you wanted to clerk for an unconfirmed judge, but now I can’t ask you that because the Senate just got called.”

Entin was the first person outside the Ginsburg family to hear the news; he reports his subsequent interview being interrupted by congratulatory phone calls. In 1981, Entin started his clerkship and worked, collaborated and learned from Ginsburg for over a year. He fondly recalls his time with her, including the wine and cheese meetings she would organize while Entin and her other two clerks were reviewing cases. Ginsburg was not especially social, “but we were all part of the family,” Entin shared. 

Our country has suffered a great loss with the death of Ginsburg, but her legacy and struggles will live on. However, the question remains: How will we respond to her death? 

On a personal level, some people have mourned outside the Supreme Court, while others have written or shared stories. Politically, we are more restricted. In order to prevent Trump from recklessly pursuing his authority, at least two more Republican senators (in addition to the current support from Sens. Lisa Murkowski of Alaska and Susan Collins of Maine) will need to vote against confirmation. 

For sitting Republican senators to make this decision challenges not only the president, but their entire position and power within the party. If just four people dissent, that fourth representative will be considered the traitor who abandoned their party. As such, confirmation will likely only be blocked if multiple Republicans band together. 

Entin related this phenomenon to the historical organization of firing squads. When firing squads were in use, a row of soldiers lined up to shoot those sentenced to death. However, one random soldier would be given a rifle with blank ammunition, but nobody would know who received it. This system allowed soldiers to maintain a clear conscience by telling themselves they were the one who didn’t actually shoot anyone.  

While this is certainly a “ghoulish comparison,” to quote Entin directly, it is perhaps for that very reason that it is appropriate for the situation. We have just passed another COVID-19 benchmark: 200,000 Americans unnecessarily dead. Some leaders of our education, healthcare and legal systems refuse to address the inherent inequality built into their history and current proceedings. It is time that we consider the severe and lasting impacts of our decisions, and those of our representatives. 

For whether we like it or not, the next three months will shape our lives for the next 10 years—if not more. As Entin put it, “We’re all going to live with how this plays out.”