Oct 01, 2020
Honoring a Lioness of the Law
Oct 01, 2020
By Susan Feder
On September 18, our nation lost a fierce leader for justice and equality: Ruth Bader Ginsburg, fondly known as “Notorious RBG” or just “RBG.” Both as an advocate and a jurist, she was instrumental in furthering the cause of gender equality in our country.
As an advocate, she won five of the six most important gender discrimination cases before the U.S. Supreme Court. Aside from Thurgood Marshall, no single American jurist has so directly advanced the cause of equality under the law. The fight for equality was in her soul. In her first oral argument before the Court in 1973, she reached back to the words of Sara Grimke, recognized as one of the founding mothers of the women’s suffrage movement, saying “I ask no favor for my sex; all I ask of our brethren is that they take their feet off our necks.”
RBG led a trailblazing life. Her incredible strength, work ethic, and brilliant legal mind are acknowledged by allies and opponents alike. While she was small of stature, she was a giant of justice. When she graduated tied for first in her class from Columbia Law School in 1959, she was shockingly unable to find a legal job. She became a soldier for women’s right to equal pay, opportunity and respect in all avenues of society and advanced those goals substantially over the course of her career. For her, equality was not limited to women having the right to a place at the table of power. Representing men as well as women, Ginsburg pursued an incremental approach, attacking stereotypes and showing how outdated notions of men-as-breadwinner and women-as-caregiver hurt both genders. She was an incrementalist who sparked a revolution. In advocating for equal opportunities for men and women, she stated "Women will have achieved true equality when men share with them the responsibility of bringing up the next generation."
While Justice Ginsburg authored many brilliant majority opinions, she is equally known for her artful dissents. “The most effective dissent,” she wrote, “spells out differences without jeopardizing collegiality or public respect for and confidence in the judiciary.” Her dissents often resulted in changes to the law years later. Perhaps her most resonant dissent in light of this year’s election is the one she wrote in 2013 in Shelby County v. Holder. In that case, the majority all but struck down the 1965 Voting Rights Act, based on the argument that the Act (and one of its features, known as “preclearance”) had effectively solved voter suppression for posterity. Ginsburg famously declared that, “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes, is like throwing away your umbrella in a rainstorm because you are not getting wet.” Unfortunately, much that she predicted about the stripping away of voting rights has come to pass.
Shortly before she died, Justice Ginsburg told her granddaughter that “my most fervent wish is that I will not be replaced until a new president is installed.” Yet, predictably, her wish is not being honored. Just a week after her death and only weeks before the election, Senate Republicans are already scrambling to confirm her replacement as I write this message. The Republicans apparently have shockingly short memories. One hour after Justice Scalia died on Feb. 13, 2016, and nearly nine months before the 2016 election, Mitch McConnell stated that the Senate shouldn’t confirm Scalia’s replacement until after the election. His statement could not have been clearer: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.” Apparently, McConnell’s concern for the voice of the American people only applies when the sitting president is a Democrat. In a staggering example of hypocrisy and lack of integrity, the Republicans in the Senate now claim that there should be no barrier to the current president in filling Justice Ginsburg’s vacancy, notwithstanding an election a mere six weeks—rather than nine months—away, and in spite of the fact that votes have already been, and are continuing to be cast.
In 2016, when President Obama selected Merrick Garland as his choice to fill Justice Scalia’s seat and Senate Republicans refused to act, Lindsey Graham vehemently proclaimed, “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination." Graham has defended his egregious hypocrisy in rejecting his 2016 statement with the flippant comment, “You would do the same.” No, Senator Graham, I would not.
While I understand why the Republican-controlled Senate wants to install a conservative justice on the Supreme Court, likely altering the balance of the Court for decades, it is shameful that there has been so little acknowledgement of the directly contrary position taken by the same individuals a mere four years ago. Could there be a starker example of those in power taking a position when it is advantageous to them, only to abandon it for the very next case to come along, when it is no longer in their interest? The blatant lack of integrity and honesty are breathtaking.
In contrast, we mourn the loss of a brilliant woman of integrity, who also brought kindness and compassion to her work, a jurist who fought for her beliefs but did so with respect for others. She counseled us to, “Fight for the things you care about but do it in a way that will make others join you.” I hope that the passing of Justice Ginsburg rekindles our strength and determination to fight for a country that embodies our motto of liberty and justice for all!
I would like to take a moment to thank you for your continued support of MCBA. In this unprecedented time, MCBA continues to offer programming to support you and your practice. I hope to see you both partaking in it and sharing your knowledge in it as future presenters and article writers. I encourage you to check out the new online, four-day format of our upcoming MCLE Fair November 16-19. We have many wonderful presenters and outstanding keynote speakers, including the Chief Justice of the California Supreme Court. Don’t miss the many great programs we’ll have next year by renewing your membership during the upcoming renewal period.
Stay well, stay connected, stay strong.
Susan has been a full-time mediator since 2010, and is on the panel of Judicate West statewide. She uses insight and intuition to bring a fresh and creative approach to reaching settlement. Before becoming a mediator, Susan was a business litigator with a national law firm and practiced in house as litigation counsel for Bank of America. Susan’s mediation practice covers a wide variety of cases, including tort, employment, real estate matters and commercial litigation. When negotiating a settlement, Susan focuses on uncovering the issues fueling the dispute, and redirecting the parties towards resolution and finality. Susan is the MCBA President for 2020.