A Moment before the Election: Death of Justice Ruth Bader Ginsburg Opens a Pandora’s Box

The announcement of the death of the justice sparked controversy as to whether the Republicans should find a replacement for her immediately or wait until the middle of November, after the election.

Ruth Bader Ginsburg was a groundbreaker long before she was named as a Supreme Court justice. Ginsburg, who passed away on the eve of Rosh Hashanah, was a feminist icon and a pioneer for civil rights. Her death is likely to bring about a retreat from some of the gains achieved by the U.S. justice system that were attributed to her personality.

The justice, who was open about being Jewish, achieved much during her career and was always proud of her background. With her death, Ginsburg leaves behind Elena Kagan, another Jewish woman on the U.S. Supreme Court. Sixty years ago, Ginsburg applied to be a Supreme Court law clerk but did not get the job, despite the fact that she had studied at two of the best law schools in the United States and had excellent recommendations. She was rejected because she was a woman.

Presently, her death opens a Pandora’s Box as to whether Republicans should find her replacement immediately, 1 ½ months before the presidential election, or wait until after the election results. After Ginsburg’s death, Barack Obama, the 44th U.S. president, mentioned in an online post that during his last year in office, 269 days before the presidential election, he sought to name, Merrick Garland, a Jewish American federal judge, to the Supreme Court following the death of a conservative justice, but the nomination was blocked.

At the time, Republican senators blocked confirmation hearings for Obama’s nominee, claiming that it was a job for the winner of the 2016 presidential election. And so Obama’s successor, Donald Trump, nominated Neil Gorsuch to the Supreme Court, and the nomination was confirmed by the Senate. Republicans had thus come up with the principle that according to the Senate, it is not necessary to fill a vacancy on the Supreme Court before a new president is sworn in. Now, Obama is calling on Republicans, who are eager to carry out the hasty appointment of a justice to their liking, to implement the principle they established back in 2016. It is doubtful that Republicans will heed Obama’s request.

There will be those who find parallels between what is happening in the United States and what is happening politically in Israel. In the past, we have heard similar calls here meant to prevent anyone whose future was uncertain from making any decisions or nailing down anything. Twelve years ago, former Knesset Member Benjamin Netanyahu made a speech in which he called on Prime Minister Ehud Olmert to resign. At the time, Benjamin Netanyahu claimed that “a Prime Minister who is buried up to his neck in investigations has no public or moral mandate to make important decisions because there is a suspicion that he will make decisions based on his own political survival and not on national interest.”

A month and a half before the presidential election in the United States, the sense is that Trump intends to use his Republican majority to appoint a new justice to replace Ginsburg. But the U.S. Supreme Court cannot find a parallel in Israel. The U.S. Supreme Court is meant to interpret the law, and the nine justices who sit there are appointed for life. The justices of the Supreme Court of the United States render judicial decisions on ethical issues; and this is why the makeup of the court is so important. In the 2000 election, the U.S. Supreme Court had decided not to interfere in the results of the election for president in the battle between Democrat Al Gore and Republican George Bush, when Gore claimed that the counting of the ballots was flawed.

But involvement of the the court was required at the time because the gap between the two candidates was very small. This is the reason current President Trump wants to quickly appoint someone to the court, while Joe Biden is demanding that the nomination be made by whomever wins the election. The intriguing question, the answer to which we will never know, is what Ginsburg would have to say about the situation created by her death.

The author is the director of the news department of Channel One and the executive director of the journalists’ union.