Mourners pay tribute outside U.S. Supreme Court as battle brews over RBG’s successor

WASHINGTON, Wash. — A solemn procession of ordinary Americans, many of them mothers with daughters in tow, left flowers, cards and tributes scrawled in chalk Monday as they publicly mourned the death of U.S. Supreme Court icon Ruth Bader Ginsburg. 

Across the street on Capitol Hill, in stark contrast to the peaceful, sun-dappled memorial growing outside the high court’s front steps, a titanic political battle was taking shape over Republican efforts to confirm her successor before the November election.

“A lot of us would sit around and have Ginsburg parties, where we would read her dissenting opinion, because we knew it was going to be that awesome,” said Yolanda Trotman, a lawyer and former judge from Charlotte, N.C. 

Trotman scrambled to find colleagues to take over her cases so she could hop a flight to D.C. and visit the court in person in order to mark the memory and legacy of the diminutive legal giant known simply as RBG. 

“It was really emotional for me, just knowing the enormity of not just the loss for the legal community, but what it means for a generation,” she said.  

“It establishes how important elections are, because this” ⏤ she gestured at the court’s towering alabaster columns behind her ⏤ “is one of the reasons why elections have consequences.” 

Like many who turned up Monday, Trotman described feeling dismay at how quickly the news about Ginsburg’s death Friday at the age of 87 turned into a political clash over a succession process that promises to change the shape of the court for a generation. 

President Donald Trump, reportedly eager to add another conservative jurist to the court, promised Monday to name his nominee before the end of the week. 

Senate Majority Leader Mitch McConnell vowed to ensure a vote on that nominee before the end of the year.

“The Senate has more than sufficient time to process a nomination,” McConnell said on the floor of the chamber Monday. “History and precedent make that perfectly clear.”

Democrats, meanwhile, are promising to fight tooth and nail to ensure Ginsburg’s ultimate successor is nominated and confirmed after the Nov. 3 presidential election. 

They point to the fact that in 2016, after the death of Antonin Scalia ⏤ a conservative Supreme Court judge who forged an unlikely bond of friendship with Ginsburg ⏤ Republicans like Sen. Lindsey Graham argued unequivocally that it would be up to the next president to name a replacement. “Use my words against me,” Graham famously said. 

“Same scenario, but this time the benefit is for (Republicans), and not for the American people,” Trotman said. “The American people have a right to determine who’s going to sit in that seat based on who they elect on November the 3rd.”

Canadians, meanwhile, could be excused for wondering why the process of nominating Supreme Court members seems less politically fraught in their country than it is south of the border. 

That’s in part thanks to the U.S. constitution, which ensures the American judiciary is a coequal branch of government, along with Congress and the White House, said Melissa Haussman, a political science professor at Carleton University in Ottawa. 

Indeed, politics and justice are joined at the hip at the U.S. state level, where the vast majority of judges run for office and are elected. 

The U.S. court has had judicial review powers over congressional law and presidential actions since 1803, as well as the ability to pass judgment on the constitutionality of state actions, she said. 

It wasn’t until the 1982 Charter of Rights and Freedoms that the court’s Canadian counterpart found itself with similar powers, Haussman said.  

None of that means, of course, that politics don’t enter the picture in Canada. It just tends to happen behind the scenes, rather than under a public spotlight. 

“I don’t think that that plays out necessarily on the floor of the House of Commons the way it plays out in these televised hearings of the U.S. Senate, and then in public debate. The nature of the process is very different.”

Outpourings of grief are another point of distinction. 

Kathleen Miller and friend Kristen Krzyzewski, both having travelled from Baltimore to hold vigil in Ginsburg’s name, appeared close to tears as they contemplated the fallout from the coming political fight.  

Miller pointed to Ginsburg’s friendship with Scalia, ideological polar opposites though they were, as a model for the nation. 

“We need to get back to the relationship that that they had, we need to get back to that type of civility where we can have differences of opinions,” she said. 

“They voted in life-changing ways, and they were still really good, solid friends. We need someone that’s going to help us to come back to that civility, really, because it’s there. It’s underneath. We all just want to start healing from so many different things that are happening in our country, in our nation and our world.” 

This report by The Canadian Press was first published Sept. 21, 2020.

James McCarten, The Canadian Press