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Joe Biden and the Ghost of RBG

Democrats should seek to embody a party ready to govern, and avoid using the Barrett confirmation process for unproductive showboating or offensive signaling.
September 29, 2020
Joe Biden and the Ghost of RBG
3rd December 1993: Associate Justice of the Supreme Court of the United States, Ruth Bader Ginsberg. (Photo by Ron Sachs/Consolidated News Pictures/Getty Images)

Joe Biden was waging a smart and impressive campaign focused on Donald Trump’s sputtering presidency—until the death of Ruth Bader Ginsburg altered its trajectory.

From the beginning, Biden dismissed the risible alarums of the perpetually febrile Democrats whom his braintrust aptly called “bedwetters.” Tara Reade’s literally incredible story of sexual assault did not bring Biden down. He did not sell out to Bernie Sanders or, conversely, drive away progressives. Trump’s pandemic-driven domination of the spotlight did not harm Biden; predictably, it dramatized Trump’s bilious incompetence.

Biden’s campaign blew off the foolish suggestion that he prematurely name his cabinet—an action that would have roiled the party and given Trump fresh targets to shoot at. Even sillier was the condescending notion that Biden duck the debates, which would have fueled Trump’s narrative that Biden is too senile to cope with the presidency.

All this nonsense exposes the hysteria which pervades social media, and the rank amateurism of too many commentators whose self-regard swamps their feeble grasp of practical politics. Sane opponents of Trump can thank God that Biden and his advisers share a professional disdain for such folly.

As the bedwetters agonized about all those weeks in the basement, Biden fortified his finances; picked a serviceable running mate; largely unified the party; planned a successful convention; and honed a consistent message rooted in Trump’s failure to cope with the pandemic. Writes Jennifer Rubin: “For all the caterwauling from Democrats about the Biden campaign (Not out enough! Not progressive enough!), this is among the best-run and best-financed campaigns I have witnessed. The Biden team deserves credit—if for nothing else, for shutting out the noise of under-informed consultants and disregarding Twitter’s self-appointed experts. It has both harnessed the left and enticed a steady parade of Republicans (Cindy McCain being the latest) to back him.”

Biden is speaking to the voters he needs to carry battleground states—including swing voters, disaffected Republicans, and persuadable working-class folks. He’s maintaining the center-left approach which won him the nomination, gently ignoring the entreaties of Bernie Sanders to start campaigning with Alexandria Ocasio Cortez. (Not in Pennsylvania, thanks.) Acknowledging his weakness among Hispanic voters, he’s emphasizing their vulnerability to the coronavirus and a loss of the protections provided by Obamacare.

Given the realities of the pandemic, Biden’s campaign is prioritizing phone calls, postcards, texts, and the internet to reach voters wary of organizers knocking on their door. Biden is accelerating his appearances in the locales that matter most, while personifying responsible leadership by forgoing the large campaign events—so dear to Trump—that could become superspreaders.

Finally, he’s campaigning as himself, a decent, sensible, and seasoned guy willing to respond to voters and interviewers in varied settings. So far Biden, not Trump, is Teflon: Nothing Trump throws at him is sticking—whether socialism, senility, corruption, or his imaginary affinity for looters and rioters.

But now comes a profoundly unwelcome problem for Biden and his party: keeping an incendiary Supreme Court nomination—including the ongoing iconography of Justice Ginsburg—from diverting their campaign into a self-destructive war over cultural issues and court-packing schemes.

That begins with Democrats owning an unpleasant truth. By remaining on the Court to suit herself, Ginsburg gambled with its future—and, it turns out, the future of a country that desperately needs Trump gone. Consider the existential challenge she bequeathed to Democrats: How to confine the damage triggered by her death to a quarter-century of right-wing jurisprudence which guts every principle she stood for.

This is an exceedingly touchy subject—especially among progressive women for whom Ginsburg became a heroic figure. After Ginsburg’s death, journalist Dorothy Samuels emailed Emily Bazelon of the New York Times about interviews she had conducted concerning the ailing justice during the critical period of 2013 and 2014: “I was struck by how many people I spoke with, including friends, acquaintances and former clerks, felt she should have resigned at the time and that her staying on was terribly self-centered—a view I share. . . . I was also struck that normally forceful advocates I spoke with would not express their dismay on the record while she was alive.”

But some did. In a brave and bracingly unsentimental article for Mother Jones in 2018, Stephanie Mencimer reprised the tsunami of iconography—including RBG films, yoga mats, water bottles, T-shirts, action figures, magnets, and pins designed to look like her “dissent collar”—in which Ginsburg took such obvious pleasure.

“But no amount of swag or hagiography,” Mencimer concluded, “can obscure the fact that . . . her legacy may be sorely tarnished by one truly terrible [decision]: refusing to retire when President Barack Obama could have named her replacement. . . . The situation today is one many liberal lawyers feared years ago and worked hard to avert. But the feisty Justice rebuffed them all, a decision that makes all the hero worship hard for some of us to stomach.”

Among those forthright lawyers was Harvard Professor Randall Kennedy, who noted in 2011 that civil rights pioneer Thurgood Marshall’s failure to resign despite flagging health resulted in his replacement by the “most retrograde justice since World War II”—Clarence Thomas. Warned Kennedy: “If Justice Ginsburg departs the Supreme Court with a Republican in the White House, it is probable that the female Thurgood Marshall will be replaced by a female Clarence Thomas.”

Despite serial bouts of cancer, Ginsburg stayed. In 2014, the distinguished legal scholar Erwin Chemerinsky wrote two opinion pieces urging her to retire. As he later told Bazelon, “I feared the Republicans would retake the Senate in November 2014, and it seemed so unknown what would happen with the presidential election in 2016. . . . If she wanted someone with her values to fill her seat, the best assurance was to leave when there was a Democratic president and Senate. Obama could have gotten anyone he wanted confirmed at that point.”

Instead of heeding this unassailable reasoning, Ginsburg made her displeasure known. “It was certainly conveyed to me,” Chemerinsky recently said, “that she was not pleased with those who were suggesting that she retire.”

Indeed, Ginsburg had come to view herself as irreplaceable—and said so. In the fall of 2014, she told Elle that “anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.”

By then Ginsburg had a chorus of mostly female enablers who reduced worrying about the grave implications of her tenuous health to a rank act of sexism. In 2014, under a remarkable headline proclaiming that “Ruth Bader Ginsburg Is Irreplaceable,” Slate’s Dahlia Lithwick wrote: “Telling her that her work is awesome, but it’s time to move on is tantamount to saying that a liberal is a liberal and that Ginsburg brings nothing to the table that another Obama appointee will not replicate.”

But that was never the point: The worry was about the ideological balance of the Court should a Republican succeed Obama. And the self-serving insinuation by Ginsburg and her most ardent admirers that Obama could not seat a philosophically compatible successor was blatantly counterfactual.

Twice before 2014, when control of Congress changed, Obama maintained the Court’s status quo by appointing two liberal women—Sonia Sotomayor and Elena Kagan—to succeed the retiring liberal Justices Stevens and Souter. Neither Stevens nor Souter was irreplaceable and, as a practical matter, neither was Justice Ginsburg—no matter how admirable her bristling dissents.

Yet Ginsburg and her acolytes ignored the salient example of her two male colleagues. In an otherworldly dismissal of reality, Ginsburg during the Obama years told the New York Times: “There will be a president after this one, and I’m hopeful that that president will be a fine president.”

Not so much, it turns out. But Lithwick called it insulting to suggest that Ginsburg was “determinedly unaware of the political world she inhabits.” To this she added two contradictory sentences: “Isn’t the doomsday scenario of a 6- or 7-justice conservative bloc screamingly obvious to her? Should any of us really counsel Justice Ginsburg on her major life decisions?”

How could Ginsburg’s enablers truly believe that this was simply a personal “life decision” and yet that her continuation on the Court was of such unprecedented importance that no one could ever replace her?

Inevitably, someone would, and Ginsburg was hardly a solo practitioner defying disease to forestall her dread of retirement. As Isaac Chotiner wrote in the New Republic: “Matters of policy and people’s lives are at stake, and, frankly, hurting the feelings of Justice Ginsburg is nowhere near the most important issue about her possible retirement.”

“In retrospect,” Mencimer wrote, “it doesn’t seem like a coincidence that the making of Notorious RBG happened at a time when many liberals were begging her to step down.” Indeed, there was something deeply unserious about the cultish devotion which curdled rightful veneration for a feminist pioneer into a willful denial of actuarial and political reality which seemed to infantilize otherwise clear-eyed adults. Trump has demonstrated with brutal celerity that Ginsburg was no more irreplaceable than any mortal—what mattered was who took her place.

As Mencimer admonished two years ago: “How cute will we find Ginsburg if she becomes incapacitated and Trump replaces her with someone like 46-year-old social conservative Amy Coney Barrett, who believes life begins at conception and doesn’t really believe the Supreme Court must uphold precedent like Roe v Wade. . . . The RBG action figures and the pushup videos will be a paltry balm for the damage likely to be done to racial equality, LGBT rights, and reproductive freedoms”—not to mention, Mencimer could have added, the harm to Dreamers, labor unions, environmental protection, voting rights, the Affordable Care Act, and even, perhaps, the free and fair election that Biden needs to win.

Ginsburg’s idolaters may find her replacement an appalling act of lèse-majesté. But this never should have been about cosseting one ailing octogenarian.

The last thing the Biden campaign needs now is a politically tone-deaf crusade for self-expiation among Ginsburg’s most zealous devotees, replete with unpopular court-packing schemes and strident interrogations of Judge Barrett’s Catholic faith.

As Anne Applebaum observes in the Atlantic:

Fixating on the Court organizes the electorate along two fronts of a culture war, and forces people to make stark ideological choices. Instead of focusing voters on the president’s failure to control COVID-19 or the consequent economic collapse, the culture war makes voters think only of their deepest tribal identities. . . . Democratic politicians and activists, and even ordinary voters who use social media, should concentrate as much as they can on the tangible issues that people grapple with every day—why their children aren’t in school, why their business has shut down, why their health-care plan is insufficient, why 200,000 people have died—and why the choice of president affects those issues so profoundly.

As it is, the death of Justice Ginsburg has granted Trump a merciful change of subject while shrouding Biden’s message. It also strengthens Mitch McConnell’s efforts to maintain control of the Senate. While a confirmation battle over social issues hurts Cory Gardner in Colorado and Susan Collins in Maine, a fight over abortion and gun rights will likely help endangered Republicans Steve Daines in Montana, David Perdue in Georgia, Thom Tillis in North Carolina, Martha McSally in Arizona, Lindsey Graham in South Carolina, and Joni Ernst in Iowa—all of whom quickly joined the call for an early confirmation for a Ginsburg replacement.

Then there’s the problem of Judge Barrett herself. While from the standpoint of Democrats and their preferred outcomes she’s a retrograde jurist, she is also, undeniably, an admirable human being—respected by colleagues of all ideological stripes, the mother of seven kids, including two adopted from Haiti and a young son with Down syndrome. When, during her confirmation hearing for the appellate bench in 2017, Dianne Feinstein worried aloud that “the dogma lives loudly within you,” she offended not only Catholics, but a swath of Americans writ large.

Republicans are openly hoping that Democrats repeat that grievous mistake, alienating potentially pro-Biden constituencies like moderate Catholic suburbanites or culturally conservative Hispanics. Instead of showboating to dramatize their offense at Ginsburg’s precipitous replacement—boycotting Barrett’s confirmation hearings, or denying her the courtesy of a personal meeting—Democrats should sharply and soberly question her on areas of broad public concern, like protecting Obamacare, where they enjoy a political advantage. In short, they should embody a party ready to govern—while secretly hoping that Republicans take Barrett off the table by confirming her before election day.

That’s not defeatism, it’s reality. What matters now is winning the presidency and, if possible, the Senate. It is they, after all, who can still change the country’s direction—and fill the next vacancy on the Court.

Yet again, Biden has it right. His first statement about Ginsburg’s death noted that 200,000 Americans would have likely died from COVID before he finished his remarks. In a subsequent appearance focused on blue-collar voters he refrained from mentioning Ginsburg at all. Wisely, he is deferring hot-button issues like expanding the Court until the election is done.

The better part of political wisdom, Biden knows, is to let Justice Ginsburg rest in peace. He must hope that her partisans do as well.

Richard North Patterson

Richard North Patterson is a lawyer, political commentator and best-selling novelist. He is a former chairman of Common Cause and a member of the Council on Foreign Relations.