The NPR Politics Podcast - Ruth Bader Ginsburg, Progressive Icon, Dead At 87

Episode Date: September 19, 2020

Justice Ruth Bader Ginsburg died Friday. The Supreme Court announced her death, saying the cause was complications from metastatic cancer of the pancreas. OUR COVERAGE: - Obituary, by Nina Totenberg - Live Blog and Latest News - Trump's Supreme Court Short-list - What Happened With Merrick Garland And Why It Matters Now (from 2018)This episode: campaign correspondent Scott Detrow, congressional correspondent Susan Davis, legal correspondent Nina Totenburg, and national political correspondent Mara Liasson.Connect:Subscribe to the NPR Politics Podcast here.Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Listen to our playlist The NPR Politics Daily Workout.Subscribe to the NPR Politics Newsletter.Find and support your local public radio station.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hey there, it's the NPR Politics Podcast. I'm Scott Detrow. I cover the presidential campaign. I'm Susan Davis. I cover Congress. And I'm Nina Totenberg, and I cover the Supreme Court. It's just about nine o'clock on Friday, September 18th. Supreme Court Justice Ruth Bader Ginsburg is dead at 87. The cause of death was pancreatic cancer, which she had battled along with other forms of cancer for years. Nina, you know, in recent years, Ginsburg had become a cultural icon for so many progressives. Let's start with this. Can you tell us about who she was before she became RBG, before she was a Supreme Court justice? You know, she's always been a sort of a

contradiction. She was always a demure firebrand, a justice who was dogged but decorous. She always believed, don't get mad, just move on to the next thing. That anger doesn't serve you well, you just keep going and you do your job and you do it to the highest standards you possibly can. You know, when you become a Supreme Court justice, it overshadows so many other parts of your life, and that makes sense. But before we talk about her career on the court and her legacy on the court, what do we need to know about what she did as a young lawyer, how she got to be a young lawyer, and the context through which she really fought her way into the legal ranks and fought her way into changing so many laws. You know, she couldn't get a job at a law firm. I do think that I was born under a very bright star because you think of my life.

I got out of law school. I have top grades. No law firm in the city of New York will hire me. She couldn't even get a teaching job for the longest time. She was dismissed. They gave me time to devote to the movement for evening out the rights of women and men. By the 1970s, she was leading the crusade for women's rights in the courts, and she quite simply remade what life is like for American women. The words of the 14th Amendment Equal Protection Clause,

nor shall any state deny to any person the equal protection of the laws. Well, that word, any person, covers women as well as men. And the Supreme Court woke up to that reality in 1971. Back then, there were hundreds, maybe even thousands of state, federal, and local laws that said in explicit terms that women couldn't have access to certain jobs, to certain rights, even to jury service. Her campaign to equalize gender rights changed the way this country is. And she could never have served a day on a court, and she would have dramatically had an impact on the United States as we know it today. But she served 13 years on the Court of Appeals and more than 27 years on the United States Supreme Court. And she had an enormous effect. Nina, what are some of the rulings on

the court that will be part of her legacy? Well, there was the Virginia Military Institute case in which she said to the state of Virginia, you can't have this military school, state military school, open only to young men. True, the standards are very rigorous, and it's very difficult to meet those standards for not only most women, but most men. But for women who can meet them, it has to be equal. It has to be open to them. Reliance on overboard generalizations, typically male or typically female tendencies, estimates about the way most women or most men are,

will not suffice to deny opportunity to women whose talent and capacity place them outside the average description. That was a big decision of hers early on in her career on the Supreme Court. In the 2000s, as the court grew more and more conservative, and once Justice Sandra Day O'Connor,

the first woman on the court, retired, it became more and more conservative, and she more and more played a dissenting role. Dissents speak to a future age. It's not simply to say my colleagues are wrong and I would do it this way. The greatest dissents do become court opinions, and gradually, over time, their views become the dominant view. So that's the dissenter's hope.

They are writing not for today, but for tomorrow. And she would pick her shots very strategically, but when she dissented vigorously and cared passionately about it and wanted to call attention to her dissent, she did an oral dissent from the bench. They're very rare, but justices do them. And she used that strategically, for example, to say to Congress after the Supreme Court had conservative majority had cut back on

the back pay that was available to victims of sex and race and other kinds of discrimination. She lost that case five to four. And she wrote in her dissent from the bench, I remember sitting there, and she was very calm, but very deliberate. And you could sense the power in it. She said, this is now up to Congress to change. It's in your court, Congress. And the first thing that Congress passed, the first bill that Congress passed after Barack Obama was elected, was the Lilly Ledbetter bill to overrule that Supreme Court decision. Nina, I've always been so struck by how you have been able to cover the court, not just through the legal ins and outs, but you've really been able to illuminate who these nine people are, not just as people, but to each other. And I wonder what she meant to the other justices, and how are they responding to her death?

Well, I assume that all of them will issue statements, but in the Supreme Court's press release announcing her death this evening, Chief Justice Roberts said, Our nation has lost a jurist of historic stature. We at the Supreme Court have lost a cherished colleague. Today we mourn, but with confidence that future generations will remember Ruth Bader Ginsburg as we knew her, a tireless and resolute champion of justice. Nina, you interviewed her so many times. You covered her for so long. You got to know her really well. I'm wondering just what you're remembering about her and what stands out from her career and her life to you tonight.

Well, I've known her for 48 years, and she taught me in the beginning a lot about the law. She was, you know, older than I, but not wildly older than I. And she, I learned from her. I didn't even understand how the Constitution could, Equal Protection Clause could apply to women. And I called her up. That was how I first met her. And she gave me an hour-long lecture. And over time, we became first professional friends, then personal friends, and at the end of her life, really close friends. And I'm heartbroken. I will never meet anybody like this again. She was just an extraordinary woman. And she was extraordinary

to me. You know, when my late husband was terribly sick for almost five years, she would just scoop me up, take me out. She was an extraordinary justice, an extraordinary legal figure, and an extraordinary human being. I mean, Nina, as important a figure in legal history as Ruth Bader Ginsburg is, the whole story tonight is not just about looking at her life. It's about this enormous, caustic, massive power struggle that is about to take place. And I just want to end with some reporting you have about a statement that Ginsburg dictated shortly before she died on that front. Yes, just days before she died, as her strength waned and she was beginning to realize that her days were not that many, she dictated this statement to her granddaughter, Clara.

My most fervent wish is that I will not be replaced until a new president is installed. And by that, she meant, of course, not necessarily Trump or Biden, but until the next president is installed. Nina Totenberg, a longtime Supreme Court correspondent, close friend of Ruth Bader Ginsburg. Thank you so much for talking to us tonight. Thank you for having me. Bye. We're going to take a quick break. And when we come back, that political fight that Ginsburg saw coming.

Support for this podcast and the following message come from the Annie E. Casey Foundation, developing solutions to support strong families and communities to help ensure a brighter future for America's children. More information is available at aecf.org. The way things are going right now, even if you can keep track of what's happening in the news, it's hard to know why it's happening, what it really means. That's why we have created a daily podcast that answers your questions about the news in about 10 minutes every weekday. It's called Consider This. New episodes every weekday afternoon from NPR. And we're back and now we're joined by Mara Liason. Hey, Mara.

Hey there. Sue, let's start with Mitch McConnell. In 2016, the Senate Majority Leader did not hold a hearing or a vote on Barack Obama's nominee to the court, Merrick Garland. He said that it was an election year, so the people should decide through their vote. We are less than 50 days before the presidential election. People are already voting in some states. What did McConnell say tonight? McConnell said tonight what he has been saying for the last two years, that if a vacancy occurred on the court before the election, he would move to fill it. Tonight, in a lengthy statement, he concluded, quote, President Trump's nominee will receive a vote on the floor of the United States Senate, just hours after the news of her death. And it seems like McConnell is preparing the Senate for

what could be a vicious and divisive and historic Supreme Court battle in the Senate. Do you think that McConnell would, since he has so few days left, just dispense with hearings and bring the nominee to the floor, especially if it's a nominee who is already a senator? You know, McConnell is powerful, but he's not all powerful. And Republican senators all have their own calculations to make here. Many Republicans in very critical seats up for reelection. I find it hard to believe that there could be zero hearings on a nominee that might be a bridge too far, even for Republicans who would support this strategy. But yeah, it is possible to move a nominee through the Senate 46 days before an election. Normally, it would require overwhelming bipartisan cooperation and probably a non-controversial

nominee. It doesn't sound like there's going to be either of those things. Senate Democrats are already out tonight saying the same standard that applied to Merrick Garland should apply here. There should not be a nominee until the election takes place. And whoever wins this election should be able to nominate the successor to Ruth Bader Ginsburg. And of course, in these Senate races, Democrats are pointing out that people like Tom Tillis and Cory Gardner famously said that the voters should have a say and that their voice should be heard on election day before a vote on a Supreme Court nominee. One thing I think that is really important to watch are senators like Susan Collins of Maine, Lisa Murkowski of Alaska, and even Shelley Moore

Capito of West Virginia, the women Republicans in the Senate, because the death of Ruth Bader Ginsburg is going to put the issue of abortion rights into the center of this debate. And these are Republican women who have historically supported abortion rights, some with limitations, but they certainly do support abortion rights. And their votes are going to be very critical. And if they do not want to move forward with a nominee, if President Trump nominates someone who has a record of opposing abortion rights, this could get very complicated very quickly. So I know Mitch McConnell is saying he wants to have a vote, but the politics here are incredibly complicated this close to an election. And with Republicans, a lot of Republicans

looking at their own survival in an election where the winds aren't really already blowing in their direction. And Mara, just to underscore the stakes here, one of the big storylines of the last Supreme Court term was Chief Justice John Roberts repeatedly holding back the other conservatives on the court from issuing sweeping rulings that would change American law in big ways, siding with the liberals at times, other times writing very narrow rulings. He wouldn't really have that ability at all in a 6-3 court.

How much of a difference would this swing from one of the most progressive members of the court to a Trump appointee be? Once they have a 6-3 majority, I think that that means the conservative judicial project has reached its fruition. For 40 years since Roe was decided, conservatives have worked to get a durable majority. They have 5-4 now, but 6-3 is a heck of a lot more durable majority on the court, so they could do the things they want to, chip away at Roe, maybe not undermine it in one fell swoop. But there's a lot of things at stake. To me, the interesting question for the election is, what voters care more about this? Historically, Republican voters have cared more about the courts, partially because they felt the courts were against them. But now they are the ones with the majority on the court, and they're within striking distance of having a really big one. Democratic voters have been slower to understand why the courts were important.

I think that what Sue said, putting Roe on the front burner, will help energize Democrats about this. But there's not that much that Democrats can do right now. I mean, I don't see why. Look, anything can happen. This is so unprecedented. We don't know exactly what the political ramifications will be. But it's hard for me to imagine that Republicans won't try as hard as they can to get someone on the court either before November 3rd or January 1st. Mara, I think you're totally right that Supreme Court fights historically

motivate a conservative base more. But in this situation, I think the politics cut both ways. I think if Republicans attempt to put a justice on the court who opposes abortion rights, it's not only going to motivate Democrats, you know, way more than they already are, but it raises this question of just women turnout, independent turnout. I mean, where this country is macro on that issue is very different from where the conservative base of the Republican Party is. And that's where I think that it could be a sort of turnout, historic, motivating factor, especially for women voters, if it becomes not about sort of conservatism on the court, but about the future of abortion rights in this country. You know, we've only known this news for a couple hours, and I'm already thinking a lot about this. The Kavanaugh confirmation hearings was the most caustic, angry, divisive thing

I've ever personally covered. We are now talking about something, you know, now two years, the country has only gotten more divided, more angry over the past two years. We know that the president's going to appoint someone, Mitch McConnell says he wants to hold a vote with less than 50 days before an already boiling over presidential election. I just can't imagine how this is going to play out over the next few weeks. And that's what I'm thinking about. It's hard to imagine that it's anything but bad for the country. When constitutional rules get

stretched to their breaking point, when people do things or exercise political power because they can, and when you don't have bipartisan buy-in for the process or the actual product of what the debate is, that's bad for social cohesion. It's just bad. The Democrats that I've been emailing with since the announcement of Ruth Bader Ginsburg's death have been saying, if this goes through, it's going to put tremendous pressure on the Democrats to get rid of the filibuster and expand the court if they get control of the Senate and the White House. Now, I don't know whether they will actually be able to do that because that is a huge step. But every time you break a norm, you get an equal and opposite reaction.

In other words, the other side wants to go further. And I don't see how any good can come of this. It really depends who it is. You know, the nominee will matter here. If it is someone widely considered to be qualified for the court, but a conservative, I agree with Mara, it could be good for Republicans. If it's a Neil Gorsuch type jurist who has a long career and is widely respected in the field, that's going to be a lot harder to create a partisan war over. If Trump goes to his most base instincts and nominates someone more controversial, if he picks someone off that list like Senator Ted Cruz of Texas or Tom Cotton of Arkansas,

then it's going to be way worse and I think potentially more controversial, more angry and more divisive than the Kavanaugh hearings. As we tape, we've gotten word that former Vice President Joe Biden will be issuing a statement shortly. President Trump just spoke to the press after his rally in Minnesota tonight. She led an amazing life. What else can you say? She was an amazing woman. Whether you agreed or not, she was an amazing woman who led an amazing life. I'm actually sad to hear that. I am sad to hear that. Thank you very much. Nina Totenberg talking before about how long she's known and covered Ruth Bader Ginsburg. She wrote a really excellent obituary of her life, what she means in the legal community for the country. You can read it at npr.org. It's worth the time to read there. I'm Scott Detrow. I cover the presidential campaign. I'm Susan Davis. I cover Congress. And I'm Mara Liason,

national political correspondent. Thank you for listening to the NPR Politics Podcast.