09.21.20

Address On The Passing Of Justice Ruth Bader Ginsburg

. . . . Senate Floor

I stand here today with an incredibly heavy heart.  Justice Ruth Bader Ginsburg – a tireless, legendary champion of equality who reshaped our society for the better – passed away on Friday, the first eve of Rosh Hashanah.  Adherents of the Jewish faith believe that a person who passes away during the High Holidays is a person of great righteousness.  Truer words couldn’t be spoken of Justice Ginsburg.  Standing at just over five feet tall, she was a giant among us.  A moral beacon whose life and legacy have inspired millions of Americans to do their part to bring about a more just and more perfect Union.  We are forever indebted to her.  

The Brooklyn-born daughter of working-class Jewish parents, the young girl who would become just the second woman to serve on the Supreme Court knew from early on that she would have to fight for her place in the world.  And what a fighter she was.  When she entered Harvard Law School in 1956, just one of nine women in a class of over five hundred, the United States was truly a man’s world.  Women were expected to stay home and out of the work place.  Even when they had jobs, they could be fired for getting pregnant and they otherwise earned barely half of what men earned for the same work.  Women couldn’t get credit cards without their husbands’ consent.  As Justice Ginsburg would remark some years later, these and other gender-based rules helped to “keep women not on a pedestal, but in a cage.”  

Justice Ginsburg refused to accept the status quo.  She believed unwaveringly that “equal justice under law” fundamentally required gender equality.  When she joined the ACLU’s Women’s Rights Project in the early 1970s, she waged a systematic legal campaign against gender discrimination, ultimately winning five out of the six cases she took to the Supreme Court.  She eloquently and incisively convinced the all-male Court to see – and strike down – the visible and invisible lines that kept the genders unequal.

In Reed v. Reed, she convinced the Supreme Court for the very first time that the Equal Protection Clause of the 14th Amendment barred discrimination on the basis of sex, enshrining constitutional protections for generations of women and men.  During oral arguments, she spoke quietly yet confidently, piercing through dense legal arguments with moral clarity.  In Frontiero v. Richardson, in which she convinced the Court to end gender discrimination in the administration of military benefits, her words resonate powerfully today:  “In asking the Court to declare sex a suspect criterion,” she said, “I ask no favor for my sex; all I ask of our brethren is that they take their feet off our necks.”

Within a few short years Justice Ginsburg had already empowered millions of American women through her zealous advocacy, granting them more autonomy over their lives, their bodies, and their careers. She was widely hailed as the Thurgood Marshall of women’s rights, and could have simply rested on her laurels from that point forward.

And she was just getting started.  In 1980, President Carter nominated her to be an appellate judge on the D.C. Circuit.  I was extremely proud to vote for her confirmation.  There she developed a reputation as a pragmatic consensus seeker, often finding common ground – and building friendships – with conservative judges like the late Justice Scalia.

It was no surprise that in 1993 President Bill Clinton selected Ruth Bader Ginsburg to be a Justice on the Supreme Court — a call she took while visiting Vermont.  I still vividly remember her confirmation hearings before the Senate Judiciary Committee.  She was the embodiment of humility, grace, strength, and wisdom.  She endured four long days of at times intense questioning from Senators on both sides of the aisle.  She never once lost her poise.  I thanked her for fighting for a world in which my daughter would have opportunities equal to those of my two sons.  Unsurprisingly, she was confirmed by a 96 to 3 vote, becoming just the second woman to ascend to our nation’s highest court.  My vote for her confirmation to the Supreme Court is among the most consequential – and impactful – I have cast a Senator.

Over the course of nearly three decades, Justice Ginsburg secured her place as one of the most ardent defenders of equal rights for all Americans in Supreme Court history.  She never tired of being a voice for the voiceless, and always tried to use her power to uplift the powerless.  She authored the landmark majority opinion in United States v. Virginia, striking down the Virginia Military Institute’s male-only admissions policy as unconstitutional.  Her words still read like a treatise on what equality must mean in America:  Laws or policies are “presumptively invalid,” she wrote, if they “den[y] to women, simply because they are women, equal opportunity to aspire, achieve, participate in, and contribute to society. . . .”

Even when she was in the minority, Justice Ginsburg did not go quietly, and she always left an impact.  In the Lily Ledbetter case, where the majority ruled that a claim of unequal pay was barred by an arbitrary statute of limitations, Justice Ginsburg retorted that the majority “does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination.”  She urged Congress to correct the Court’s “parsimonious reading.”  And two years later, we did just that, passing the Lilly Ledbetter Fair Pay Act, a copy of which she proudly hung in her chambers.

In Shelby County v. Holder, the disastrous decision to invalidate key provisions of the Voting Rights Act, Justice Ginsberg’s dissent spoke truth to power.  She wrote that throwing out key provisions of the Voting Rights Act “when it has worked . . . to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”  And, of course, Justice Ginsburg was right.  Since that decision we have witnessed a torrent of voter suppression laws, which is why I’ve championed the bipartisan John Lewis Voting Rights Advancement Act to restore the VRA.  These drives for change, and many others, often began with two words from the Justice wearing the bejeweled collar:  “I dissent.”

All the greatness of Justice Ginsburg was matched in spades by her authentic goodness.  I’ll always remember the Action for Cancer Awareness event that she and my wife Marcelle spoke at together last year.  She was so genuinely kind to Marcelle, me, and all the people she interacted with.  She loved people, and so it’s not surprising they loved her right back.  Justice Ginsburg became a beloved cultural icon, inspiring books, movies, and even Saturday Night Live skits.  Her dogged, public battle with cancer and her can-do attitude – she missed less than a handful of arguments despite her years-long illness – inspired millions across the world.

Through it all, she never lost her humility.  When asked how should like to be remembered, Justice Ginsburg simply said:  “Just as someone who did whatever she could, with whatever limited talent she had, to move society along in the direction I would like it to be for my children and grandchildren.”  As I stand on the floor of the United States Senate, I can say with certainty that she will be remembered for that, and for so much more.

This incredible life and legacy should be the only story of today.  Sadly that is not the case.  Instead of simply celebrating her life and her many contributions to our society, President Trump and the Majority Leader have forced our attention to turn to her vacancy on the Court.

Immediately after news of her passing, Senator McConnell announced he would rush to replace her on the Court.  Tossing aside all precedents and principles, he declared his intent to ram through a nominee no matter the cost.  Despite all of Senator McConnell’s talk and promises four years ago – that when a vacancy arises 269 days before a presidential election, the American people should have a voice in deciding what president fills that vacancy – today the Majority Leader is doing everything he can to deny the American people a voice. And this time, with just 42 days remaining before the presidential election.

Seeking a fig leaf of institutional cover, today Leader McConnell is trying to conjure up yet another new rule that, essentially, there was an unspoken exception to everything he promised in 2016.  Apparently the American people do not get a voice when the White House and Senate are under the control of the same party. 

Pay no attention to the fact that this contradicts everything Leader McConnell and other Republicans claimed to believe ad nauseum for 10 months in 2016.  But even this desperate hair splitting falls flat on its face.  If the Majority Leader’s 2016 rule to let the American people decide only applies when there is a divided government, then the unprecedented 10-month blockade of Merrick Garland contradicted the confirmation of Justice Kennedy by a Democratic Senate during an election year in 1988.

The Majority Leader’s abrupt about face is not about following precedent.  And it certainly isn’t about principle. The blatant hypocrisy — and the belief that norms and principles apply only to the other party, or apply only when nothing is at stake — is the result of something even more insidious.  It is the direct result of the President and Majority Leader wanting to bend the courts to their will no matter the cost.  No matter the cost for the Senate.  And no matter the cost for our courts.

I will have much more to say about this.  Make no mistake, the actions that we take during these waning days of the Trump administration will forever stain, or redeem, this institution in which we proudly serve.  The 100 members of this body represent 330 million Americans.  We are entrusted to act in their best interests.  Through our actions in the weeks ahead, we risk forever eroding the American people’s trust and faith in our independent judiciary.  And our actions will have a lasting impact – for good, or for ill – on every American’s most basic rights — rights of equality and fairness that Justice Ginsburg spent a lifetime securing.

But today I simply seek to honor Justice Ginsburg.  She dedicated her life to the causes of equality and justice and made both a reality for millions of Americans.  She has left us a rich legacy to cherish and, more importantly, to carry forward.  We will forever be in her debt.  A generation – more than a generation – of women, and all Americans, have been inspired by her leadership and courage.  Generations to come will have her trailblazing legacy to thank.  Let us honor her memory by following her example – by recommitting ourselves to pursuing a more perfect Union.  Not just for the few.  No, not just for the few, but for all.

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