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    Ann Rostow: What Now?

    By Ann Rostow–

    What Now?

    If we are to survive the crisis brought on by the death of Ruth Bader Ginsburg, we must win both the presidency and the Senate. And then we must go to war.

    I believe in incremental change, as long as the increments are significant and as long as they keep moving in the right direction. But assuming the Republicans fast forward a hard-right nominee and place him or her on the High Court, I’m all for massive change. I’m all for ending the filibuster and expanding the Court, possibly reforming it with term limits and/or some of the other arcane suggestions we’ve heard. I also support making Washington, D.C. a state, and Puerto Rico as well, with the islanders’ consent. 

    Then let’s pass a buttload of progressive legislation. Let’s make the New Deal and the Great Society look like the breakfast buffet at the Days Inn compared to the feast we produce for the coming generations. Eggs Benedict, brioches, quiches, bacon, grits, and pancakes with every fruit you can imagine. Endless bellinis with just a tiny bit of fresh peach and cases of cold Bollinger.

    Let’s let Amy Barrett or whomever Trump picks add her voice to a larger choir, where she and her ilk won’t block out the sound of reason or hope. Let’s watch the Republican Party destroy itself and let’s watch something different rise from the ashes. A loyal opposition that may still be conservative, but contains within it a degree of sanity that recognizes climate change, inequality, the value of immigration, and the need for health care and infrastructure. On the eve of this election, it already feels like a turning point in American history. Let’s turn sharply then, all of us together—or most of us if you don’t count the QAnon brigade. Let’s make America great again, for real.

    Any Hope Here?

    Is there a chance the Republican Senate will fail to seat a Trump nominee? Yes, I think there is that chance. But I’ve also had my optimism crushed in the past, and I can’t bear to push my heart into the middle of the table on that particular scenario. 

    Mel and I have been busy trying to research congressional rules. What if none of the Democrats show up for hearings?! What if people abstain? What if this? What if that? We don’t really know. Our hasty internet searches don’t tell us. We watch MSNBC for clues, and find it too depressing. 

    And what happens if a Trumper makes it onto the Court and we can’t or won’t expand the number of justices? The results are so horrific, for our community and our country, that it’s hard to speculate. 

    Hmmm. I wonder what would happen if we stood in the middle of the interstate at one in the morning? Perhaps the oncoming traffic would swerve to avoid us. Maybe only a few cars and trucks would be out at that hour. Maybe we’d get sideswiped and wind up on the median, bruised but basically okay. But we don’t really have to go down the list of possibilities for a 6–3 conservative Court, do we? In the end, we know we’re going to be roadkill. 

    Overturning Roe v Wade won’t make abortion illegal overnight, but it will in some states. We’ll have to rely on the conscience of state lawmakers to preserve a routine procedure that is supported by a majority of Americans and which gives women agency over their own lives. 

    Gay and trans rights won’t be overturned or revoked perhaps, but they will be superseded by individual and corporate “faith” that will create, not a loophole, but a giant gap in civil rights laws and policies. 

    Affirmative action will be gone. Gun rights will be completely unchecked. Environmental rules and workplace regulations will be off the table. 

    A new justice is not likely to be in a position to hear oral arguments on Obamacare, which are scheduled a week after the election. But a 4–4 tie will effectively send the case back to the highly conservative lower court that has suggested that the (now-dead) individual mandate presents a fatal flaw in the Affordable Care Act. If Democrats don’t win the Senate and the presidency, that could end health insurance for, what is it? Twenty million people? I don’t feel like looking that up. Even if this case slides through somehow, the next challenge could kill it and the Republicans could offer one of their “skinny” replacements.  

    Well, you can see the headlights racing towards us.

    Hold My Beer

    Do you wish Ginsburg had retired under Obama? I suppose, in hindsight, that would have been nice. But she would have had to do it early. Can you imagine if McConnell had held her seat open too and then let a seven-member Court preside for ten months? Would you have put that past him? 

    Four years ago, I was one of those people who wasn’t that upset about Merrick Garland, the moderate nominee whom Obama suggested as a strategic choice. I was waiting for President Clinton to name a younger, more liberal candidate. As for Ginsburg, by the time the election year rolled around, I also wanted Clinton to name her replacement. Sometimes, I think about smug Jim Comey and I just want to belt him. Ditto Jill Stein. 

    No, this disaster wasn’t Ginsburg’s fault. 

    I won’t try to add to the many eulogies we are seeing in the media, although I recommend the piece by Linda Greenhouse in The New York Times. Of the many cases Ginsburg brought before the Court, however, the one that stands out at the moment is the 1976 sex discrimination case of Craig v Boren, a challenge to an Oklahoma law that banned men from buying 3.2 beers until they were 21, but allowed women to buy this watered down abomination at age 18. 

    I had thought Ginsburg argued the case, which wasn’t true, but she sat at the counsels table, wrote an amicus brief, and designed the strategy that built on her earlier efforts. The majority not only ruled for the hapless male plaintiff, but they also ruled that sex discrimination must be examined with heightened scrutiny, and be substantially related to the achievement of a specific and important government objective.

    Three months ago, in ruling that GLBT discrimination was a form of sex discrimination, the 6–3 Court effectively raised our community to that higher level of legal scrutiny, a goal towards which GLBT lawyers have been aiming for years. We got there via Ginsburg, not just via her vote last June, but via her life’s work.

    Climate Change

    A few commentators have remarked that Ginsburg was once thought too wishy washy on feminism by the left wing of the day back in 1993. After Roe, she wondered whether the justices had gone too far. As Greenhouse quoted her in a speech just prior to her nomination to the Court, Ginsburg noted:

    “The framers of the Constitution allowed to rest in the court’s hands large authority to rule on the Constitution’s meaning” but “armed the court with no swords to carry out its pronouncements,” she said, adding that the court had to be wary of “taking giant strides and thereby risking a backlash too forceful to contain.”

    It’s true that the courts must rely on at least some consensus between the three branches of government. In the most obvious instance, the Brown Court needed the president to send troops to Little Rock to enforce desegregation. As for the right to an abortion, which Ginsburg also called “central to a woman’s life, to her dignity,” the Roe Court has left us with a political issue that has riled the country for nearly half a century. Today, the intensity of this debate has jumped the shark into pelagic depths of illogic, where the lives of immigrants, COVID-19 patients, and impoverished children seem to matter not at all, while a zygote, or even a swimming sperm, has become an individual cherished by God. Abortion has become a litmus test for Christianity and family values, even as those values are seemingly ignored in dozens of other contexts. 

    It’s possible that this now-mindless culture war will decide our fate as single-issue evangelicals head for the polls. But I’m guessing that some of them, along with some GOP leaders, may start to feel like the dog that caught the car. Do they have daughters who might become teenaged mothers? Do they have sons, who might be paying child support before they graduate from college? Do they have grandchildren who might be alive to watch some of the great cities burn or flood? Do they have pre-existing conditions? 

    In another quote from Greenhouse’s obituary, Ginsburg herself quotes constitutional law professor Paul Freund: “Judges do read the newspapers and are affected, not by the weather of the day, but by the climate of the era.”  

    So, what is the climate of the era? Is it as bleak as it seems? Or is this the dark before the dawn?

    How frustrating to be trapped in moments of time when we’re so desperate to see the future.

    Game Over!

    I just checked my last column to make sure I don’t repeat one of the topics I covered previously, and it was like looking through a time warp. First, I mused about the transgender rights case involving Gavin Grimm heading back to the High Court. Subsequently, I breezily noted that the High Court was never going to support whatever crazy bull crap Trump might send them in a last-ditch effort to steal a second term after he loses to Joe Biden.

    You may recall that Gavin Grimm won his Title IX discrimination case before the U.S. Court of Appeals for the Fourth Circuit last month. Normally, the same Court that just ruled 6–3 that transgender Americans are protected under laws against sex discrimination would not be inclined to dispute that Fourth Circuit victory if they were to review it. Now, who knows? 

    Normally, Trump’s baseless legal fireworks fall harmlessly into the sea, Now, who knows?

    Reviewing my list for this week, I had planned to write some more about transgender discrimination at the Department of Education. I also thought Jerry Falwell, his wife, and the cabana boy deserved a line or two. I saw that the San Antonio airport will be allowed to ban Chick-Fil-A after all. And there’s a case or more about faith-based excuses to discriminate; always a favorite subject in these pages.

    Now, I’m indifferent to these and other snippets of GLBT news. Even as I’ve been writing this morning has come more bits of depressing information; Mitt Romney has gone to the dark side. Trump will name a successor by Saturday. I find it nauseating that, just as George H.W. Bush replaced the civil rights giant, Thurgood Marshall, with his ideological opposite, Clarence Thomas, Trump plans to nominate a female conservative who will be the antithesis of Ginsburg on the Court.

    How wrong to put Thomas in for Marshall, or Someone Female in for Ginsburg, keeping up a Black Seat or a Woman’s Seat as if those adjectives somehow made up for the disparity in conviction. I’d almost rather he name a white male. 

    Our only hope now is Trump puts someone forward, and Democrats manage to stall for a few weeks, after which it emerges that the nominee had a roll in the hay with Betty Falwell and the pool boy, in black face, while Jerry watched. The process stalls, we have a massive landslide victory on all counts, Mitt Romney wavers on a lame duck confirmation, and we hold out while Mark Kelly is sworn in to replace McSally on November 30.

    A girl can still dream.

    Published on September 24, 2020