The talking heads on the Sunday morning news programs went back and forth between appropriately reviewing and honoring the life of Supreme Court Justice Ruth Bader Ginsberg, and speculating about the politics of naming her successor. One comment caught my ear and got me thinking. I think it was George Stephanopoulos on ABC who made the comment, “Well, the October surprise came early this year.” Whether it was Stephanopoulos or someone else who made the comment, it was followed by the sense of “What else would you expect in 2020?” 

If “October surprise” is not a term that you know, let me give you a few of the best examples. James Comey announcing that the FBI was reopening the investigation of Hillary Clinton’s emails on October 28, 2016 is a perfect example. It was the last of three October surprises in 2016. The first one was the “Access Hollywood Tapes” that revealed Donald Trump discussing women and the benefits of celebrity which had been released on October 5. About the same time Wikileaks had released emails from John Podesta, the campaign director of Hillary Clinton, that suggested inconsistency between the inner workings of the campaign and what the candidate was presenting as her positions. We have forgotten most of the “October surprises,” but they have been factors in several of the presidential elections over the last fifty years, and some probably did change the course of history. There is at least one other famous October surprise that arrived early in September. It was on September 17, 2012 that we first heard MItt Romney on tape speaking disparagingly in May of that year about the 47% of Americans who paid no federal taxes. A true October surprise did occur in 2012. It was in October of 2012 that Chris Christie, the Republican governor of New Jersey praised Romney’s opponent, Barack Obama, for his management of Hurricane Sandy, to the chagrin of Mitt Romney’s campaign.

I think it is a pity that we are feeling forced to talk about something other than the remarkable life and contributions of Justice Ginsberg. If we had a president who had the ability to feel respect for anyone, friend or noble foe, or to discuss any topic that did not orbit around him, then we would set politics aside and be in a period of national mourning, but we don’t have a president who recognizes or cares about norms of behavior that he thinks might disadvantage him. 

This October surprise threatens a clear majority of Americans. Will it lead to a repeat of 2000 or 2016 when the the winner of the election lost the popular vote? In the first chapter of her beautiful book, Caste:The Origins of Our Discontents, Isabel Wilkerson describes the 2016 election in an interesting way. She writes:

Before the campaign was over, the male candidate would stalk the female candidate from behind during a debate seen all over the world. He would boast of grabbing women by their genitals, mock the disabled, encourage violence against the press and against those who disagree with him. His followers jeered the female candidate, chanting, “Lock her up!” at mass rallies over which the billionaire presided. His comments and activities were deemed so coarse that some news reports were preceded by parental advisories. 

Here was a candidate “so transparently unqualified for the job,” wrote The Guardian in 2016, “that his candidacy seemed more like a prank than a serious bid for the White House.”

On the face of it, what is commonly termed race in America was not an issue. Both candidates were white, born to  the country’s historic dominant majority. But the woman candidate represented the more liberal party made up of a patchwork of coalitions of, roughly speaking, the humanitarian-minded and the marginalized. The male candidate represented the conservative party that in recent decades had come to be seen as protecting an old social order benefitting and appealing largely to white voters. 

That passage, especially the part that I have bolded, spoke to me. I first read it several days before Justice Ginsberg died, but I thought of it immediately upon hearing of her passing. She was definitely humanitarian-minded and from her personal testimony she was marginalized. If you graduate first in your class from Columbia Law School and can’t get a job at a New York law firm because you are Jewish, female, and a mother, you are marginalized in a very unique way. If you spend your professional life, up to the moment of your death, trying to improve the experience of other marginalized people, and creating equity for every person just because they are a person, what better description could be applied to your endeavors than “humanitarian-minded?”

There is no need to contrast Justice Ginsburg’s contributions to those of the individual who short of a miracle of self awareness on the part of four Republican senators will replace her. The president assures us that his nominee will be a woman. His base is certain that the woman he nominates will be willing to force her sense of reproductive choice on all women. It is very likely that he will choose someone who is willing to do away with the progress we have made toward universal access by voting to reject what is left of the ACA. What will happen to those of us with pre existing conditions? Will someone chosen for compatibility with conservative ideals that favor maintaining white America as the source of America’s greatness have any interest in favorably considering cases brought to the Supreme Court that might foster the improvement of working conditions and pay for the poor, work to reduce global warming, or support the resolution of the complex issues related to migration and immigration? The Supreme Court with a very conservative justice replacing Justice Ginsburg will be positioned to negate any progressive legislation, including laws that might produce universal access to healthcare, that might be passed over the next twenty years. 

The COVID pandemic has revealed that our healthcare system performs even more poorly than we have previously imagined. The inequality of outcomes across all marginalized groups has been highlighted by the pandemic. The downside of paying for procedures rather than for the care of a population can now be seen by any person willing to look at the economic peril of many of our rural hospitals and the hospitals that serve the urban poor. Justice Ginsburg was well aware of the critical nature of her presence on the court. Her dying wish, as expressed to her granddaughter was,  “My most fervent wish is that I will not be replaced until a new president is installed.” With those words she underlined just how vulnerable so many people will be to a court that is chosen by a leader who has never achieved 50% approval. 

The Constitution is a remarkable document that has generally served us well by making change difficult. It protects the rights of small and sparsely populated states from dominance by the will of larger and wealthier states, but those benefits have come at a cost. The power of minority forces coupled with arcane Senate rules created an inability to address the Jim Crow environment of the South after the same powers brought an end to Reconstruction. If the arc of history bends slowly, critical parts of the explanation are the electoral college, and the filibuster rule in the Senate. The president is correct when he says that the Constitution gives him the right to name a replacement for Justice Ginsburg. The Constitution also allows the Senate to deny confirmation to his nominee. We are back to looking for four Republican senators who might have the courage to grant Justice Ginsburg’s plea and allow the next president, the one that is chosen by a fair election, to nominate her replacement. More than a decade of healthcare improvement is at risk. Millions of Americans may have their lives changed by whether a few Republican senators can find the courage to say no to the demands of Mitch McConnell and Donald Trump. 

Last year I read Frederick Douglass: Prophet of Freedom by David Blight. It is a sad book. Douglass toiled for years to end slavery, and then had a short period of hope following the Civil War and the passage of the 13th and 14th Amendments to the Constitution, but then the dominant culture returned to power and millions of marginalized Americans were returned to virtual servitude and terror for another 100 years while we moved very slowly toward the Civil Rights Act of 1964 and the Voters Rights Act of 1965. I am not saying that the loss of the benefit of choice granted to women through Roe v. Wade or the loss of the benefits of the ACA for tens of millions of vulnerable Americans are equal to the misery endured by Black Americans for four hundred years, but as we look forward to what appears to likely happen, I can share some of Frederick Douglass’s sense of loss and frustration. 

The header for today’s note is a picture that I took of the Supreme Court building on a trip to Washington in 2015. Whenever I go to Washington I enjoy walking around the public buildings and the Mall. I was disappointed with my picture of the Supreme Court when I took it because the sky was overcast. Now I see that there is even a greater cloud over the Court, and over all of us. Things do happen out of our control. As I was writing this note, I received notice from Bandcamp that my son’s song for the week was out. His song spoke to me, but his brief explanation of the thought behind the song said even more. He wrote:

In this song, I think we’ve got somebody trying to be steady in a world of impermanence; a character whose identity is wrapped up in an instinct to be patient, to wait, to last, while the dominant impulse is the opposite. I think patience is proving to be a virtue in our current predicament. We control so little outside of our willingness to hold on.

We have been patient, and it looks like we may need to be patient for a long time, because we do seem to “control so little outside of our willingness to hold on.” I’ll hold on. I will pray for the miracle of four Republican senators caring more about the future of the country than remaining in line by licking the boots of Mitch McConnell and Donald Trump. My prayer will be for the miraculous appearance of four humanity-minded Republican senators who might really care about the marginalized is halfway home. We just need two more senators to find the courage to join Senators Murkowski and Collins in saying that the process should wait until after the election. 

Justice Ginsburg lived a remarkable life. She had a gift for making straightforward and concise statements that were pearls of wisdom. Type into your browser “Quotes of Ruth Bader Ginsburg” and you will discover one of the reasons she will be so missed. We will miss her wit, her grit, and her strength. She was a fount of inspirational renewal if you are “humanitarian-minded” or a person who has been marginalized. My favorite Ginsburg quote comes from a question she answered following a lecture she gave at Stanford in February 2017. The moderator, Persis Drell, asked:

Justice Ginsburg, it’s a huge pleasure and honor to have you with us. Thank you so much for accepting our invitation to be the Visiting Rathbun Fellow. As you know, the Rathbun program is designed to foster thinking about what it means to lead a meaningful life. You’ve said some things about that already, but could you encapsulate what it means to lead a meaningful life for you?

Justice Ginsburg answered:

To put it simply, it means doing something outside yourself. I tell the law students I address now and then, “If you’re going to be a lawyer and just practice your profession, well you have a skill, so you’re very much like a plumber, but if you want to be a true professional, you will do something outside yourself, something to repair tears in your community, something to make life a little better for people less fortunate than you.” That’s what I think a meaningful life is, one lives not just for oneself, but for one’s community.

We will miss her. We must show the same resolve and persistence that she showed over a long lifetime. As medical professionals we should be living a life that finds much of its meaning in service to our communities. That has been the attitude of more than a thousand colleagues who have died in the pandemic because they answered the call to service from their communities. It has been leaders like them and like Ruth Bader Ginsburg who have the ability to feel compassion for others and to work for their relief that have made America great and will make America even greater as we strive for ideals like the Triple Aim and the elimination of healthcare disparities. People caring about people is the origin of greatness. Service to others is the core of medical practice. Lives like the one that Justice Ginsburg lived are a reminder that doing something that is self-serving, like pushing through a candidate for the Supreme Court at an inappropriate time just because you can, is no way to lead America to greatness or to protect and improve the health of her people.