The death of Ruth Bader Ginsburg, and covering the Republican push to replace her
By Jon Allsop
And mourning fills the news again. On Friday, a year uniquely defined by loss dealt us another painful blow as the Supreme Court Justice Ruth Bader Ginsburg—a trailblazer for women’s rights, a brilliant and original legal mind, a cultural icon immortalized even in life—died at 87, from complications of cancer. “A Jewish teaching says 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,” Nina Totenberg, an NPR reporter who covered Ginsburg for decades and became her close personal friend, wrote. “And so it was that RBG died as the sun was setting marking the beginning of Rosh Hashanah.” In the hours before Ginsburg’s death, Totenberg visited her home, to bring food. “She was ferocious,” Totenberg told Rachel Maddow on MSNBC. “If she could have lasted longer, she would have lasted longer.”
In the hours after her death, the news toggled between discordant modes: as Maddow’s colleague Chris Hayes put it, “we’re trying to juggle on this evening two things, which is a sort of encomium to the life and career of Ruth Bader Ginsburg—who was truly legendary and left an incredible stamp—and then there is of course the inevitable question of what comes next.” A few days on, the latter has come to overshadow the former. Despite the proximity of the election, President Trump already pledged to nominate a replacement for Ginsburg, and Mitch McConnell, the Senate majority leader, already pledged to bring the nomination to a vote. Trump has said he will pick a woman; Amy Coney Barrett and Barbara Lagoa, appellate court judges out of Indiana and Florida, respectively, are thought to be the frontrunners. Two Republican senators—Susan Collins, of Maine, and Lisa Murkowski, of Alaska—already said publicly that they don’t support a move to fill the vacancy before the election, but more GOP defectors will be needed if McConnell is to be stopped. (Over the weekend, footage circulated of Lindsey Graham, the Republican chair of the Senate Judiciary Committee, telling The Atlantic, in 2018, that he wouldn’t move a nominee during the final year of Trump’s term, and that we should “hold the tape” of his remark. The tape, you’ll be unsurprised to learn, already proved worthless.)
The proximity of the election matters, of course, because it was the rationale McConnell cited when he moved, in 2016, to block President Obama’s nomination of Merrick Garland to the Court following the death of the arch-conservative Justice Antonin Scalia. (Trump, of course, won that year’s election and installed Neil Gorsuch as Scalia’s replacement.) Over the weekend, the idea that election-year nominations should wait so that The People Can Decide was referred to as “the McConnell rule” even though, as numerous observers pointed out, it isn’t a “rule” at all—McConnell simply made it up to justify what was then his preferred outcome, just as he has since tossed it in service of a different outcome. As CJR columnist Bill Grueskin noted over the weekend, the world “rule” lends McConnell’s chicanery “a legitimacy it doesn’t deserve.”
Since Ginsburg died, much coverage has highlighted the rancid hypocrisy of McConnell and the bulk of his colleagues. On the Sunday shows yesterday, Republican senators faced pointed questions about their about-face; they answered, as is their wont, with a fusillade of sophistry and whataboutism that wasn’t always successfully challenged. For some reason, Democrats on some of the same shows were also asked to justify a supposed flip-flop: You wanted Garland confirmed in 2016, so wouldn’t you do exactly what the Republicans are doing if you were in power now? As well as being pointlessly hypothetical, such questions had the effect of holding Democrats to McConnell’s made-up standard, twisting their rightful anger at Republican hypocrisy into some kind of gotcha. Democrats should not have to answer questions McConnell alone has posed.
As the coverage of Trump’s impeachment—which initially channeled clear facts, but swiftly got derailed in a swirl of disingenuous talking points—showed, Republicans are good at using made-up rules to shift the terrain of public debate away from their own outrageous behavior. The mainstream media—with its insistence on equating “both sides” of any given argument—has long abetted the tactic. As the Republican push to replace Ginsburg proceeds, news organizations must demarcate unblurred lines of accountability. Recognizing McConnell’s unique hypocrisy will be essential to this, as will avoiding language that gamifies the nomination process as entertainment; or that casts Republican dirty tricks in passive, impersonal terms (“political struggle,” “partisan brawl”); or that suggests Democrats are the real radicals if and when they raise court reforms as a possible response to said dirty tricks. Already, we have seen examples of all these media tics. The both-sides instinct is always corrosive, but it’s especially so at election time, when it’s the media’s job to honestly frame the partisan choice facing voters.
That said, we should avoid framing the Republican nomination push exclusively as an—or, worse, the—election story. We should avoid speculation as to how the timing of Ginsburg’s death might influence voters’ behavior, because it’s not yet clear what the timeline looks like for replacing her, and because we simply don’t know how different voter blocs are liable to respond. We must also note that the stakes, here, are much greater than the stuff of a single campaign. If Trump and McConnell get their pick confirmed, the balance of the Court could shift decisively rightward for a generation, with huge consequences for abortion rights, healthcare, and more.
Conversely, while the nomination push is, in many ways, bigger than the election, the election is, in many ways, bigger than the nomination push. In the coming weeks, it will doubtless be tempting to reduce America’s rifts to the simple drama of a messy DC bunfight, yet this year has thrown up a succession of massive stories—on race, policing, climate change, and so much more—that must continue to command our attention and energy through November and beyond. The coronavirus, in particular, must remain at the forefront of our coverage; the confirmed US death count now stands around 200,000 and the true total is much higher, and yet, as the Washington Post reported yesterday, “Americans are tuning away from news about the pandemic.” Already, the concept of life is emerging as a central plank of the nomination story. We must make it clear that it’s also unfolding against a backdrop of unrelenting, massive death.
Below, more on Ginsburg and the Court:
- Linked stories: According to the New York Times and other outlets, Joe Biden’s presidential campaign intends to focus its Supreme Court messaging on the issues of the pandemic and healthcare: the Court is set to hear a case on the Affordable Care Act shortly after the election. Per the Times, “Biden will accuse the president, as he already has, of trying to eliminate protections for pre-existing conditions during a pandemic.”
- Right-wing media: In 2016, major figures in right-wing media, including on Fox News, backed McConnell’s decision not to process the Garland nomination. Like McConnell, they’ve since done a U-turn. Over the weekend, such figures spouted “tortured logic and misrepresentations,” the Post’s Margaret Sullivan writes. “In coming days, you can be sure to hear and read about such things as the ‘Thurmond rule,’ the ‘McConnell rule,’ the ‘Biden rule’—none of which exist in law, and sometimes not even in writing.”
- Social media: Neal Rothschild, of Axios, obtained data from NewsWhip showing that Ginsburg’s death has already had a massive impact on the social-media conversation. “In just two days, there were 41 million interactions (likes, comments or shares) on stories about the late Supreme Court justice,” Rothschild writes. “That compares with a recent average of 62 million coronavirus interactions per week—and more than five times the number of weekly social media interactions over violence and rioting.”
- An ethical conundrum?: As legal reporters including Totenberg recalled their personal friendships with Ginsburg, some observers noted online that it’s not typically considered good practice for journalists to grow so close to their sources. In a column for NPR, Totenberg wrote that the answer to such concerns is “really pretty simple. If you are lucky enough to be friends with someone like Ruth Bader Ginsburg, you both understand that you each have a job and that it has to be done professionally, and without favor.”
Some news from the home front: This week, Covering Climate Now, a project led by CJR and The Nation, is coordinating intensified coverage of the climate crisis among its partner organizations—including CBS News, HuffPost, The Guardian, and Reuters—in the context of the upcoming election. (We coordinated similar initiatives last September and in April of this year.) Today, our coverage week will kick off with Youth Takeover Day, which will see partner organizations collaborate on projects with first-time voters. You can find more details here.
Other notable stories:
- Over the weekend, reporters continued to fill in the story behind a whistleblower complaint, which became public last week, alleging that a privately-run ICE facility in Georgia subjected detained immigrants to hysterectomies without their informed consent. On CJR’s podcast, The Kicker, Kyle Pope, our editor and publisher, spoke with Tina Vasquez, who has been covering the story for Prism. “When you report on reproductive justice in the immigration system, you have to learn to take care of yourself,” Vasquez said, “because you’re going to hear horrible things all the time.”
- The International Consortium of Investigative Journalists is out with the FinCEN Files, a new project, based on leaked reports from the US Treasury Department, showing how major banks move payments they themselves consider to be suspicious, and regulators fail to stop them. BuzzFeed obtained the reports and shared them with 108 news outlets in 88 countries. (In January, Natalie Edwards, a Treasury staffer, pleaded guilty to leaking documents to BuzzFeed; BuzzFeed has not confirmed whether she played a role in the FinCEN story.) In 2018, I went behind the scenes of a prior ICIJ project for CJR.
- Over the weekend, Trump okayed a complex deal that will see the Chinese-owned video app TikTok—which he had threatened to shut down, citing security grounds—become US-based; Oracle and Walmart will, between them, own 20 percent of the new company, with the former agreeing to provide secure services for TikTok data. The prospect of a deal stalled a ban on downloading the app in the US that had been set to take effect last night. Trump’s ban on another Chinese-owned app, WeChat, was set to go ahead—but a federal judge in California temporarily blocked it, citing First Amendment concerns.
- Recently, Fox’s Tucker Carlson aired a recording, made by Michael Cohen in 2016, in which Jeff Zucker, the president of CNN, can be heard praising Trump, and raising the prospect of hiring him to do a weekly show. Ariana Pekary, CJR’s public editor for CNN, writes that the recording reveals “the worst” of the network: “Zucker knows he doesn’t score points for upholding the highest ethical standards.” Ben Smith, media columnist at the Times, also weighed in on the story, which, he writes, “is a kind of Frankenstein tale for the late television age, about a brilliant TV executive who lost control of his creation.”
- Last year, Colorado passed a law making completed police internal-affairs investigations available to the public—but Sady Swanson, of the Fort Collins Coloradoan, found that in practice, loopholes in the law are restricting public access. Requests for such reports must be highly specific, Swanson writes, meaning that, in effect, they can be withheld “simply because the public doesn't know whether they exist in the first place.”
- And Jan Reid, a writer who was a longtime contributor to Texas Monthly, has died. He was 75. “Jan’s primary interests as a writer were history, politics, crime, sports, and what I’ll call revisionist views of Texas and the larger Western landscape,” his friend, W.K. Stratton, writes. He also wrote an influential book about the Austin music scene.