Commentary

Justice Ruth Bader Ginsburg: Replacing the irreplaceable

Supreme Court pick should honor the legacy of a legal pioneer

September 23, 2020 6:01 am

U.S. Supreme Court Justice Ruth Bader Ginsburg at the U.S. Supreme Court March 3, 2006, in Washington D.C. (Mark Wilson/Getty Images)

Black wool crepes drape over the chair that once held her 100-pound frame. The court’s flag remains at half-staff. Mourners pay their respects by the thousands.

It feels like five feet small has never stood so tall.

Supreme Court Justice Ruth Bader Ginsburg is the definition of a legal legacy. Even after passing, she continues to set precedent as the first woman to lie in state in the U.S. Capitol. Filling her robe is a Herculean task. Yet here we are, attempting to replace the irreplaceable.

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It was never going to be easy. The Republican Senate appears content in shamelessly permitting an impeached president to appoint a third seat on the Supreme Court. Should they succeed, a hyperpartisan conservative agenda will be secured for years to come. It’s hard to imagine how broken a system must be for the death of one woman to permit a corrupt party to set about revoking the rights of millions.

Still, for the sake of honoring Ginsburg and what the process should be, let’s consider for a moment that Republican Sen. Cory Gardner and his colleagues aren’t simply rubber stamps with Merrick Garland amnesia. Whom might the robe fit?

A quaint-in-size, devout Jewish woman who prioritized gender equality and women’s rights, Ginsburg proved every day it’s not the size of the woman in the fight, it’s the size of the fight in the woman. Although she served on a largely male, Catholic-dominated court, she fought in a way that inspired others to join her — to paraphrase the icon herself. Nowhere is this better exemplified than in her own Senate confirmation. The trail-blazing lefty feminist didn’t squeak onto the court by a liberal vote or two. Rather, her resounding talent for the law and sharp mind transcended politics, faith and gender. To this day, despite her clout as a liberal stalwart, Ginsburg’s 1993 confirmation vote of 96 of 100 senators marks her as one of the top bipartisan Supreme Court justices confirmed to date. The only suitable replacement should be equally dignified and transformational.

What Ginsburg did for gender equality in the 20th century, a new justice must do for technological equity in the 21st — but what is technological equity?

While judges frequently serve as expert generalists, a disproportionate number of cases in the coming decades will rely on advanced mathematical, scientific and technical knowledge. This can already be seen in cases of congressional mapping where divergent statistical measures must be intricately considered, as well as in medical, tort and patent law. In the near future, we’ll likely see landmark decisions related to climate change, genetics, artificial intelligence and data privacy, to name a few, all of which will define modern society. Technological equity will be a key feature, highlighting the need to ensure equal access and treatment under the law in burgeoning applications of science and technology, particularly as many algorithms are already known for racial and gender discrimination.

Certainly, several stellar judicial candidates already stand out from prior Supreme Court considerations, including Judge Ketanji Brown Jackson and Judge Robert Wilkins, the latter a Black male lawyer who won a landmark case against the Maryland police, which led to the term “driving while Black.” President Barack Obama and former First Lady Michelle Obama also come to mind as pioneers who would leave rich and distinguished legacies. Particularly in an age of racial reckoning, any one of these candidates might make for an incredible Supreme Court justice.

Yet none of these candidates hold specific expertise in technology and law (although arguably President Obama oversaw many technological advancements during his tenure). 

Colorado Attorney General Phil Weiser. (coag.gov)

This opens an interesting conversation for Coloradans, as a leading legal scholar in law and technology is our very own Attorney General Phil Weiser. A former law clerk for Justice Ginsburg and man of Jewish faith, Weiser previously served as the senior advisor for technology and innovation for the National Economic Council director at the White House under Obama. He also founded the Journal on Telecommunications and High Technology Law, as well as Silicon Flatirons, a center for law, policy and technology. His decades of unique expertise would, under normal circumstances, arguably earn him serious consideration — a pioneer in his own right.

Alas, these remain unusual times. Gardner has opted to ignore the brilliance of a fellow Coloradan, instead blindly agreeing to a nominee put forth under Trump.

Although it seems science and technology may not be on the docket this time, the considerations for a future judicial appointment remain sound. All the same, in my book, Justice Ginsburg will never be truly replaceable — even if there’s room for a new legacy.

Editor’s note: This commentary has been updated to accurately state the vote tally on Ruth Bader Ginsburg’s Senate confirmation. One senator did not vote.

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Trish Zornio
Trish Zornio

Trish Zornio is a scientist, lecturer and writer who has worked at some of the nation's top universities and hospitals. She’s an avid rock climber and was a 2020 candidate for the U.S. Senate in Colorado.

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