Wednesday, October 22, 2014

Vacancy threatens more than liberal balance

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    With the Supreme Court’s new term just two weeks old, the hottest parlor game in Washington is guessing whether Jus-tice Ruth Bader Ginsberg is serious in her insistence that she will not step aside to give President Obama the opportunity to name a replacement. There is a lot more riding on the answer than the liberal-conservative balance on the court.
    A petite frame and treatments for cancer make Justice Ginsberg seem frail. Those who know her point to better physi-cal conditioning than is true for her younger colleagues. But at age 82, she is the oldest of the justices, so speculation about the next vacancy being hers is not unwarranted. The next justice will likely shape our laws for three or more decades.
    Simply pointing to her age overlooks why she has come to be known among younger fans as the Notorious RBG, a reference to the late rapper Biggie Smalls, aka The Notorious B.I.G. As a lawyer and jurist and, since 1980, a high court justice, she has been a legal force of nature, especially where racial and gender issues are involved.
    She wrote the extensive dissent in the Hobby Lobby ruling, a 5-4 decision that held that although companies that provide health insurance must give it to all employees equally, they are allowed to deny benefits for birth-control prescriptions, a limitation that applies only to women. In an interview following that ruling, Ginsburg said the male justices have a “blind spot” when it came to appreciating the consequences of their opinions on women.
    While the current court rules unanimously on many esoteric points of law, the split on matters involving gender equity is consistent. Ginsberg is certain to remain unwavering in her commitment to women’s equal rights under the law.
    She is certain that no justice as fervent as she is about equal rights could win approval. Given Congress’ record of doing nothing at all, it seems likely it would simply refuse to confirm anyone nominated by President Obama, no matter their qualifications.
    Such a refusal by the legislative branch to accept the executive branch’s right to appoint justices would amount to a constitutional crisis, something a justice of her stature obviously wants to avoid.
    Ginsberg is risking the possibility that a president who does not share her legal perspectives will be the one to make the next appointment. By insisting that she has no intention of retiring, however, the Notorious RBG is sticking by the founding fathers’ belief that justices should do what they believe is right.
    For that, she should be applauded.

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