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Don’t Blame RBG For The Mess We’re In

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Like many people, I was stunned by the news last Friday night that Supreme Court Justice Ruth Bader Ginsburg had died.

I expected to see the tributes that poured in from across the United States, and even Canada and Europe.

She was an icon to girls and women, not just in America but elsewhere.

What I did not expect to see was the finger pointing at her, which started within hours of the announcement of her death.

Essentially, a number of people expressed unhappiness that RBG had not stepped down from the Supreme Court during the first years of the Obama Administration, when Democrats controlled the Senate.

At first, I thought this was misogyny, but I saw this point of view expressed by women as well as men.

RBG was called selfish for serving until her death at age 87, never mind the fact that President Obama only had a brief window when his party was in charge of the upper chamber.

Now, her death could allow President Trump to swing the court in a conservative direction for years to come.

Her long life aside, this line of thinking claimed that she should have plotted her tenure more strategically, to assure that liberals held more positions in order to withstand a conservative attack.

That’s not only deeply disappointing, at a time when we should be honoring her legacy, it also overlooks history, as I found when I dug deeper.

Here are the arguments — and my rebuttal.

She was too old to serve. First, she was not historically old, from a SCOTUS perspective. She was 76 in 2009, when Obama took office.

And, while most of the justices are currently younger than that, at least a dozen men served longer, some lasting even than the age at which she died. Oliver Wendell Holmes, the record holder, served until age 90.

She should have let Obama fill the seat. This argument says that RBG should have given up her seat in the years when Democrats had a majority in the U.S. Senate, which they lost in 2014.

But, the Obama administration had many, many issues on its plate for which it needed Senate votes. Keep in mind that he took office with the country deep in a recession whose impact was still being felt when the pandemic began.

Obama needed to focus on the economic recovery, the auto bailout, health care and plenty of other priorities. There was no need to throw a SCOTUS nomination onto that fire, and stretch his already over tasked staff.

It would have been distracting for a new president and new administration and don’t forget, Obama only served four years of one Senate term.

He did not have relationships going back decades that he could draw upon for favors, the way other presidents have had (and which Joe Biden presumably would have).

RBG could have conceivably brought up the issue of stepping aside in those years, but she maintained that she wanted to serve as long as her health allowed.

Given her stature, and especially with so many women in significant positions in the White House, it’s unlikely anyone would have told her it was time to go.

She could have prevented this partisan mess. Obama had no way of knowing that Democrats would lose the Senate in 2014, or how ruthless (no pun intended) that subsequent Republican leaders would be.

Clarence Thomas aside, SCOTUS nominations historically have rarely been that contentious, unless the nominee was clearly flawed.

Before this hyper-partisan era, presidents generally got who they wanted.

Sonia Sotomayor, nominated in 2009, was approved by a Senate vote of 68 to 31. Elena Kagan, nominated in 2010, was approved by a vote of 63 to 37.

Obama had the right to expect acceptance of his nominee, even if he named a candidate when the Senate was Republican controlled.

Mitch McConnell’s refusal to consider Merrick Garland’s nomination in 2016 was shocking, and it will long be remembered, just as the decision to rush through a Trump nominee will be.

But, RBG was not obligated to throw herself on a partisan pyre.

It wasn’t her seat to control. This line of thinking says that SCOTUS openings belong to the party in the White House, not individual justices.

Well, yes, it was her seat. It’s an appointment for life, unless impeachment proceedings are brought. That might be a flaw of the Constitution, but it is how things are done.

This situation could bring about an effort to change that, and perhaps it is time to set some kind of tenure or age limit, such as 30 years or age 85, whichever comes first.

But blaming RBG herself for the current situation is rather heartless. While I can understand that people are upset, it’s the wrong path to take.

Celebrate her accomplishments. Be grateful she was around for so long (just imagine if she had died earlier, and the Court had swayed right sooner). And, be sure to vote.

Micheline Maynard studied Constitutional History in undergrad and writes regularly on women’s issues. She tweets @mickimaynard

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Journalist. Author. The Check blog on Forbes.com. NPR and NYT alum

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