Timing isn’t everything

  • October 29, 2020
  • Jennifer Taylor

Note: This article was originally published by The Lawyer's Daily, a division of LexisNexis Canada, on September 30, 2020.

By Jennifer Taylor           

The night Ruth Bader Ginsburg died, I cursed 2020 for the zillionth time and then dutifully shared a photo captioned with some of her final words: “My most fervent wish is that I will not be replaced until a new president is installed.”

The next day, I realized that — not for the first time — I disagreed with RBG.

Fighting her replacement on timing instead of substance would mean turning the Republicans’ hypocrisy of 2016 (when the Senate majority refused to hold a confirmation hearing for President Obama’s nominee Merrick Garland) into a sort of constitutional convention — one that will someday backfire on the Democrats.

Proponents of the “no confirmation before inauguration” stance (including my beloved Elizabeth Warren) also risk losing sight of the bigger picture. Let’s be clear: too many things have gone wrong, too many systems have become rotten, if one judge’s death can make the difference for abortion rights in America. But now that RBG is likely to be replaced by “ACB” — Amy Coney Barrett, a darling of anti-abortion groups — that’s exactly what could happen.

It’s not even just about abortion.

As Rebecca Traister wrote in The Cut, “in the absence of structural security it is far easier to home in on individuals — as both our heroes and our villains — than it is to reckon with the enormity of what’s wrong and what needs to be righted.” Framing RBG as the hero and ACB as the villain is one thing; wholescale revolution is much harder.

I thought voting might be the way for America to start righting what’s wrong, but electing Joe Biden and Kamala Harris will not be a complete cure for the disease that caused Trump. What’s more, the right to vote in the US — already weakened by gerrymandering and racially motivated restrictions — is only as valuable as the courts’ willingness to protect it. Not only is Trump doing his best to “sow doubt” about electoral integrity (calling the election a “big scam”), the timing of Barrett’s nomination is also designed, in part, to ensure he will have a friendly bench if he loses the election and decides to litigate the results. This wouldn’t be the first time the Supreme Court decided an election (Bush v Gore, anyone?) or otherwise intervened to weaken protections for voting rights.

In Shelby Counter v Holder, the majority struck down a key enforcement provision of the Voting Rights Act. (This is just one example of the Supreme Court’s “long history of regression,” as Keeanga-Yamahtta Taylor puts it.) Justice Ginsburg dissented, calling the VRA “one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history” in shielding “the right to vote from racial discrimination.” As Justice Ginsburg recognized, the right to vote underpins all other rights.

Fast-forward to 2020. Judge Barbara Lagoa, the other leading contender for RBG’s spot, recently joined a majority decision upholding a Florida law that would prevent people convicted of felonies from voting if they had not paid outstanding fines to the state. (This, after Floridians voted in 2018 to overturn the ban on voting by people with felony convictions.) The Washington Post reported that this decision could keep 85,000 people “from casting ballots in November. Trump won the state in 2016 by fewer than 113,000 votes.”

So until voting is truly equitable, it cannot be a silver bullet. While we still need elected officials we can trust (as the pandemic has proven), we need community organizing even more. To quote Keeanga-Yamahtta Taylor again: “It is through acts of solidarity and struggle that we have been able to secure our rights and liberties in the United States, and, from the shape of things to come, that is how those rights and liberties will have to be defended. This means building movements to pressure an increasingly right-wing Supreme Court, making it more difficult for that body to further usurp the rights of regular people.”

This holds true for Canada, too.

Here in Halifax, we have a municipal election coming up on October 17. Policing is, unsurprisingly, a major issue in the election.

I’ve been lucky enough to be part of the Nova Scotia Policing Policy Working Group, a coalition of community organizations and concerned citizens working on legislative and policy reforms relevant to policing in the province. Among other projects, the Working Group has sent a survey to all candidates in the upcoming election, seeking their views on the municipality’s policing budget and the movement to defund the police, the Municipal Elections Act provision that bans incarcerated people from voting (see? it’s not just Florida), and more.

This kind of on-the-ground community work, focused on systemic change (but also the nuts-and-bolts of drafting press releases, sending emails, and collecting survey results), gives me a shred of hope when despair threatens to take over, as it has since RBG died.

In Ann Friedman’s most recent newsletter, she linked the legacies of Ruth Bader Ginsburg and Breonna Taylor, who was killed by Louisville police in March. “I’m trying to orient myself toward a more ambitious set of what-ifs,” Friedman wrote. “What if justice wasn’t one important woman’s title but everyone’s reality?”

We’re certainly not going to escape the mess of 2020, or make justice everyone’s reality, without ambition and imagination. These are two things RBG had in abundance. May her memory be a revolution.

Jennifer Taylor is a lawyer in Halifax, Nova Scotia, and the Communications Officer for the CBA Women Lawyers Forum. She can be found on Twitter @jennlmtaylor. The views expressed here are her own.