Congress Gearing Up for Fight for Supreme Court Replacement
HOLMES: Supreme Court Justice Ruth Bader Ginsburg has passed away the age of 87. Flags, at the White House and at the Capitol, flying half staff. Ginsburg, known especially for her work on gender equality, her death, now could change the balance of power on the highest court in the land. She was nominated to the Supreme Court by President Bill Clinton and sworn in August 10th, 1993. Ruth Bader Ginsburg, died, surrounded by her family, at her, home in Washington. Joining me now, with more, CNN legal analyst, Joan Biskupic. She's covered this for 25 years. And it is fantastic to have you on. You know so much just about Justice Ginsburg. Speak to your Justice Ginsburg the woman, first.</s>JOAN BISKUPIC, CNN LEGAL ANALYST: Thanks Michael. Good to be with you. She has been on the court for 27 degrees now. But she had quite a career before she became a justice. She is a pioneer in women's rights litigation here in America. Back in the '70s when the women's movement was gaining traction politically, she was at the Supreme Court, arguing six cases to expand women's legal rights, winning five of those. Then, after she became a justice, she started out as a centrist. Not the liberal we see today. She had quite a transformation that means so much to Americans right now, because of what an iconic figure she became, the voice of women's rights on the Supreme Court as well as civil rights on the Supreme Court. You can probably tell from her pictures, she was a small woman. I used to kid she was probably the only person living who would lie about her weight in the opposite direction. She was smaller than 5 feet, barely 100 pounds. But when you spoke to her, she had such a clear, deliberate, steady way. She would leave a lot of pauses between her words. She was quite serious although she had a fabulous wry sense on the side. She was many things including being a mother of two and a loving wife to Martin Ginsburg who helped her get on the Supreme Court in 1993. So a lot I can say about the human being and the personal side of Ruth Bader Ginsburg but to American law, she was so monumental. And her death will set off a momentous fight for the future of the Supreme Court.</s>HOLMES: I was going to ask you that but I also want to ask you, she was the second woman appointed to the court. How did she change the Supreme Court?</s>BISKUPIC: Ruth Bader Ginsburg came on in 1993. More than a decade after Sandra Day O'Connor and they were two completely different women. She was a Republican from Arizona, Ginsburg a Democrat from Brooklyn. She broadened the idea of the kinds of women who would be on the Supreme Court and, famously, she used to answer, when people asked how many women should be on the Supreme Court, she would say, nine. as in, 9 seats. She gave the court a new perspective, since the first woman on it, was, as I said before, was a conservative Republican. She then, as we, know paved the way for 2 more women to be named in 2009, Sonia Sotomayor, and 2010, Elena Kagan, and she was quite close to Elena Kagan.</s>BISKUPIC: In some ways she had already passed the baton to her, some of the legal negotiations on the court.</s>HOLMES: You touched on this earlier and let's revisit before we go. That is, what this sets up. In a political sense, certainly for the Democrats, the timing of her passing could not be worse; for the Republicans, could not be better. The Republicans, back when Merrin Garlick (sic) was Barack Obama's, Mitch McConnell said you cannot do this in an election near. So on, so forth. They will do it this time. How do you see that fight unfolding? There is a lot at stake.</s>BISKUPIC: There is Michael, I can't overstate what's at stake. I remember so vividly that February 13th, 2016, evening, when we all found out that Justice Scalia had passed away and Mitch McConnell put out a statement, then, saying it will be the next POTUS who chooses the successor to Antonin Scalia. As you say ,Mitch McConnell made sure the Senate, locked the nomination of Merrick Garland. The reverse could happen right now. He has already vowed to have a vote on an appointee, of President Trump. This year, He is one fierce presence and he's going to try everything possible to push through a third Trump appointee, which would so, tip the, balance on the Supreme Court for the right wing. So his message, back in 2016, is the opposite of today. He wants to have a nominee confirmed. We're on the eve of an election, this might energize more Republicans toward Donald Trump and then not only change the makeup of the Supreme Court but ensure a second term for Trump. The stakes could not be higher for two branches of government, the judiciary and the executive.</s>HOLMES: Thank you so much, Joan Biskupic, joining us.</s>BISKUPIC: Thank you, Michael.</s>HOLMES: People began gathering at the Supreme Court when the news broke that Ruth Bader Ginsburg had passed away. Many said they considered her a hero and wanted to pay tribute to her life, some lighting candles, many left flowers. But emotions are running high over the political divide in this country. There were moments of tension, with a few Trump supporters yelling at the mourners. Joining me now, CNN presidential historian, Doug Brinkley. Good to see you, speak to the historic nature of not just Justice Ginsburg's time on the Supreme Court but her career as a female jurist in the historical sense.</s>DOUG BRINKLEY, CNN PRESIDENTIAL HISTORIAN: She's an A-lister for the history books. So you won't be able to talk about feminism or the women's movement in 20th and 21st centuries without Ruth Bader Ginsburg being one of the first things uttered. She was beloved by Hillary Clinton, Bill Clinton is who chose her for the Supreme Court. She has a special place in the hearts of Jewish Americans, for a woman growing up in Brooklyn in the middle of the Great Depression in a hardscrabble situation, working all the way up to the Supreme Court. People don't realize that it's really Ginsburg who put the word "gender" into our lives. She thought that you did not have to talk about the word, sex. Instead of checking off sex she talked about gender. There is so much she did that we're living with right now. Her dissents, her writings, her Supreme Court, cases, she won 5 of the 6 Supreme Court cases in the 1970s. She was a young woman. So she was a phenom when it came to the</s>HOLMES: And when you put in the context of the, time it makes it that much more extraordinary. It didn't take long for remembrance to turn to politics and to that end, Mitch McConnell argued at the end of Barack Obama's term that it was wrong to appointment a justice in an election year. His words wee the American people will choose the next president,, who in turn will nominate the next Supreme Court justice. Now he says the opposite. I'm curious, in historical terms, are there precedents for what should be done in these situations?</s>BRINKLEY: The Democrats do not play hardball enough. And it has happened a couple of times.</s>BRINKLEY: Back in 1968, Lyndon Johnson was president and he chose Abe Fortas to be on the Supreme Court and the Republicans screwed around with it and waited until after the election. Nixon Republican won and it was absolutely no role at that point. After that occurred, for a Democrat to get on the court. We saw with Merrick Garland again. Mitch McConnell is the ultimate powerbroker of the Senate. People used to call Lyndon Johnson that. Mitch will move fast on this, so it is, now, front and center of the 2020 presidential election and it's about the economy, the novel coronavirus and perhaps the future the future of the Supreme Court. The battle for the soul of America really is upon us right now.</s>HOLMES: One thing, already being discussed, by Democrats is if a nominee is rammed through, and Republicans lose the White House and the, Senate Democrats can move to increase the number of justices, payback if you like. Is there history of that happening before? It's not a number set in stone.</s>BRINKLEY: It is not set in stone. It is not part of the U.S. Constitution. but Roosevelt, after he won a big election in 1936 didn't like the fact that the Supreme Court was holding up some of his New Deal measures, tried to so-called pack the court, went to name an additional six justices. FDR tried that stunt and he got burned trying it because members of his own party said the public can't stomach that. So it is a threat that Senator Schumer, probably, will make right now. But I think Biden, from a debate stage on September 29th, has to be careful saying if I don't get my way, add justices willy-nilly to the Supreme Court.</s>HOLMES: We are running out of time but I wanted to squeeze this in. If Donald Trump wins, as a potential, at the end of a second term, he may have appointed 5 or even 6 of the 9 justices. Is anything like that ever happening before?</s>BRINKLEY: You are getting into Franklin D. Roosevelt territory. FDR was a four-term president. Already, I tell people, the greatest accomplishment of Trump is getting Gorsuch and Kavanaugh on the court. If he gets a third, a fourth, a fifth we'll be living in the age of Trump for decades to come.</s>HOLMES: Wow. Doug Brinkley, always great to get you on. Thank you so much.</s>BRINKLEY: Thank you.</s>HOLMES: The former first lady, Hillary Clinton, played a pivotal role in getting her husband to nominate Justice Ginsburg to the U.S. Supreme Court, back in 1993. Here is what she tweeted, a few hours ago. Quote, "Justice Ginsburg paved the way for so many women, including me. There will never be another like her. Thank you, RBG." Thanks for watching everyone, I am Michael Holmes, appreciate your company, stay tuned for "MARKETPLACE AFRICA." I will see you again in 20 minutes or so.