With the temporary return of breathable air to Northern California, last evening I was sitting on the back terrace reading a novel and feeling rather fine. This was abruptly interrupted by a scream from my wife, KayKay. Thinking she had either stabbed herself or been hit by a Very Small Asteroid, I dashed inside. She looked up and said, “Ruth Bader Ginsburg died!”
I have not felt fine since.
KayKay and our children started texting immediately about our sad loss of RBG. I replied with this text, addressed to my 17-month-old granddaughter:
Once upon a time, Goldie, there was a brave warrior named RBG who fought evil ogres and slayed hideous dragons so you could grow up to be absolutely anything you want and make all your own decisions about your body.
There was more fiery allegiance to the American Experiment, more loyalty to the first principles of our Constitution, and more intense dedication to equal justice under law packed into RBG’s 5’ 1” and 85-lbs-wringing-wet frame than any 25 federal judges you can name. She will forever stand as an American icon and a peerless example of what women can achieve on an equal footing with men. She was fierce.
It turns out RBG died just a few hours before Rosh Hashanah. In Jewish tradition, according to NPR’s Nina Totenberg,“Those who die just before the Jewish new year are the ones God has held back until the last moment because they were needed most and were the most righteous.”
There are more things in heaven and Earth, Horatio, than are dreamt of in your philosophy…
I’ve written before about the enormous impact that strong women have had on me throughout my life, beginning with my independent-minded and vociferously opinionated grandmother and great aunts. It’s hard to believe KayKay is unrelated to these remarkable women, since she’s aging gracefully into their shoes. My daughter, Peanut, is a skilled professional and an astonishingly fine mother—and her daughter, our sweet little Goldie, is already manifesting an independent streak that is an X-linked genetic trait expressed across the generations of my clan.
My mother was cut from the same cloth and steadfastly continued the long tradition in her family of holding elected office and engaging in public service. She’s still at it, 92 and nearly blind, from her quarantined nursing home room. She’s asked my brother a half-dozen times to call the County Clerk—who during the 40s and 50s was her uncle—to ensure she’s registered for an absentee ballot “so I can vote against that damn Trump.” (Apropos of nothing/everything, she’s a lifelong Republican from a long line of Republicans stretching back to Lincoln… who was also from Illinois.)
There is therefore a reason why five years ago I resolved that in any primary or nonpartisan election, if there’s a woman on the ballot, I’m voting for her. (However, I will not allow gender to make me vote Republican—the only one I’ve ever voted for was my mother, and that was only after rather unfilial hesitation.) In the Democratic primary this year, it was an embarrassment of riches—almost too many overqualified women to choose from. More of that, please.
That Looming Dread
It’s probably best to stay off social media until RBG is laid to rest, I quickly discovered. Then just as quickly ignored. Moving tributes to this remarkable woman are already drowned in the ugly predictable flood of tribalism and partisanship. No avoiding it in 2020.
I’ve another level of sad anxiety (re)triggered by the death of Justice Ginsburg. What will be the ugliest Supreme Court confirmation battle in American history is upon us at the worst possible time.
I’ll leave aside the breathtaking hypocrisy of Senate Majority Leader Mitch McConnell, who just set a land-speed record for pulling a 180-degree turn. Recall he blocked Obama’s nomination to the Supremes because, at 11 months, it was just “too close to an election.” Mitch has already announced he’ll push through Trump’s nomination to replace RBG as quickly as possible.
My anxiety has been triggered by this simple mathematical fact. If every Republican in the Senate votes for him/her and no Democrats do, that means senators representing 47% of Americans will confirm the replacement for RBG.
The deck is even more stacked when it comes to impeachments. It takes two-thirds of the Senate to convict anyone impeached by the House—the President, federal judges, anyone. This means 34 senators can acquit any impeached person. You can assemble 34 senators from a group that represents just 7% of the population.
To put this in Some Real Numbers, each California senator represents 19 million people. Each Wyoming senator represents 284,000.
The House is less skewed, but the Constitution guarantees at least one representative per state. So an average California representative has 705,000 constituents; the single congresswoman from Wyoming represents 568,000.
Of course, since electors are apportioned by the size of each state’s total congressional delegation, the Electoral College also heavily advantages smaller states. Of the twenty smallest states by population, only four are reliably Blue, with another three being various shades of Purple.
Baked In from the Start
We’ve had this counter-majoritarianism baked into the US Constitution from the get-go. The original positions on the Connecticut Compromise were mostly determined by state population—large states opposing and small states favoring two senators for every state regardless of population. The hard-won compromise was all about getting to yes.
Problem is that as the Northern states grew more rapidly in population and new states were admitted as the frontier expanded, the advantage of the two-senator/state compromise fell increasingly to the less-populous Slave States. The Senate—and by extension the Supreme Court justices they advised and consented onto the bench—became bastions of the Slave Power. And this advantageous position in the Supreme Court and the Senate was used to great effect in protecting their Peculiar Institution.
With increasing polarization and entrenchment of positions between pro-slavery forces and the rapidly growing abolitionist movement, something had to give. The election of Abraham Lincoln gave the last shove to the Slave States and we all know what followed.
Here We Are Again
Does this all sound creepily familiar?
I’ve been saying tor years that the slavery issue of our time is abortion rights. There’s nothing that more perfectly crystallizes our New Tribalism than that single issue. It’s the ultimate mirror-imaged Red and Blue litmus test. It surely explains why Evangelical Christians are willing to support a most unChristian-behaving president. The catchphrase has become, “It’s all about the judges.” Which brings us back to the loss of Ruth Bader Ginsburg and the firestorm rapidly rising over her replacement.
The counter-majoritarian structure of our Constitution is particularly manifest in the creaky, undemocratic, and truly stupid institution of the Electoral College. Most responsible statisticians who’ve looked at this reckon the Small/Red State advantage in the Electoral College means that the Republicans begin every presidential election with about a 4% head start. Nate Silver’s analysis estimates that Joe Biden, who is overwhelmingly predicted to take the popular vote in November, will have to win by more than a 5% margin to have a 90% chance of winning the Electoral College. So a Democrat has to win by a landslide, while a Republican just needs to come close enough in the popular vote, even if they lose it. This has happened twice in the 21st century, after never having occurred during the entire 20th century.
A couple of years ago, The Economist magazine, a British bastion of moderation by any fair measure, ran a cover story on America’s increasingly common minority rule and the structural elements of the Constitution at its root. They also helpfully pointed out that we are the only democracy in the world wherein the party that wins the most votes doesn’t necessarily run the government. The authors also added that with the increasing self-sorting of America into younger growing Blue States and aging shrinking Red States, these counter-majoritarian features are only going to worsen.
Exactly as happened during 1830—1860. Only now there are 280 million privately owned weapons in America.
I did a lot of peacekeeping in Bosnia back in the mid-1990s. I saw how a reasonably prosperous and educated population—they’d hosted the Winter Olympics in 1984, for crying out loud—spiraled into genocide and a bitter civil war in a period of only a few months. So let me assure you that the veil of civility is tissue-thin and could be torn asunder again here, too.
So farewell, Ruth Bader Ginsburg. I mourn your loss to our nation. And I’m pleased that you don’t have to live through what may be coming in your beloved Republic.