Reaffirming the Senate's Commitment to the Orderly and Peaceful Transfer of Power

Floor Speech

BREAK IN TRANSCRIPT

Mr. KAINE. Mr. President, I want to rise just briefly to pay tribute to Ruth Bader Ginsburg.

I saw a statement about her in the aftermath of her passing that said she will probably go down in history as one of the greatest women lawyers in the history of the United States. I don't think that does her justice. I want to take the floor to say that Ruth Bader Ginsburg, in my view, will probably go down in history as one of the top three judges and lawyers ever in the history of the United States, male or female. I want to describe why. Before I do, I just want to notice the outpouring of support for her.

In the 4 days after she passed, from Friday night until Tuesday night, my office received 37,000 pieces of correspondence about Justice Ginsburg, praising her, lifting her up as a role model, expressing concern about what the Court would be without her. In my 8 years in the Senate, I have never seen an outpouring of support for an individual like that. That is just an example of how highly we hold her in regard.

Justice Ginsburg is well known and particularly well known in Virginia. One of the opinions she authored that is one of her real pivotal opinions was an opinion that ruled that a public university-- the Virginia Military Institute--could not deny access to women students. That was a very controversial case in Virginia. Justice Ginsburg's opinion was courteous and recognized the great virtue of VMI as an institution but held up its many virtues and values and said women students at this public university should be able to have the same access.

Justice Ginsburg as a Justice has left her mark on our society in such an amazing way.

I want to talk about Ruth Bader Ginsburg the lawyer because I assert that if Ruth Bader Ginsburg had never been on the Supreme Court, she still would have earned her way into one of the greatest American lawyers or jurists of all time. Ruth Bader Ginsburg.

It was a Virginian who wrote into the Declaration of Independence the words that are maybe among some of the most known words in the English language: ``We hold these truths to be self-evident, that all men are created equal.'' Those words are so powerful. They set out a powerful North Star for our country in equality and principle but had ambiguity wrapped up in them.

Jefferson, although he believed in equality, knew and was deeply troubled by the fact that slaves and other even freed African Americans at the time were not treated equally. Jefferson wasn't particularly troubled by the fact that women were not treated equally at that time. He had an ability to see what the principle should be but not necessarily to apply it to his own life, which is, frankly, a weakness that I think we all have suffered from during our life at times, but at least he set out the right principle and said that it applied to men.

I think you can look at the history of our country as a North Star was set for us in 1776, and over time, we sort of progressively realized, wow, that is what equality means. We have to orient closer to the star. A sailor can steer by a star without ever reaching it, and maybe, because we are imperfect people, we can orient by the star of equality and never get fully there because we are imperfect. When we orient by it, we do pretty well.

In the aftermath of the Civil War, the Constitution was dramatically rewritten with the addition of the 13th Amendment, banning slavery; the 14th Amendment, creating due process and equal protection of the laws; and the 15th Amendment, blocking limitations of voting based on race.

I want to talk for a minute the 14th Amendment. The 14th Amendment might be the longest amendment in the Constitution. It is power-packed.

Every citizen is entitled to the privileges and immunities of citizenship. No one can be ``deprived of life, liberty or property without due process of law,'' but especially--that echoing of what Jefferson said--all persons are entitled to the ``equal protection of the laws.''

The 14th Amendment is interesting because in other parts of the amendment, it talks about what you get if you are a citizen, but on the equal protection side, you don't have to be a citizen. All persons are entitled to ``equal protection of the laws.''

When that was passed by Congress and ratified by States in 1870, the Constitution fundamentally changed. One of the fascinating things is, as soon as the Constitution had this 14th Amendment with this particular clause in it guaranteeing equal protection of the laws--let me tell you about one of the first cases that came to the Supreme Court.

A woman by the name of Myra Bradwell, living in Illinois, wanted to be licensed to practice law. She wanted to be a lawyer, just like Ruth Bader Ginsburg. Illinois would not allow her to practice law because she was a woman. She said: Wait a minute. We have a 14th Amendment, and it guarantees me the privileges and immunities of being a U.S. citizen, guarantees me equal protection of the laws.

She took her case all the way up to the U.S. Supreme Court after Illinois denied her a law license. In 1871, 1 year after the Constitution had been amended to guarantee the equality of every person, by an 8-to-1 decision, the Supreme Court ruled that Myra Bradwell could not practice law and Illinois could limit law practice to men if that is what they chose.

Let me read from that opinion. Justice Bradley wrote an opinion then on the Court. Here is what he said:

The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the oc- cupations of civil life. . . . The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.

By an 8-to-1 decision, the U.S. Supreme Court, on which Ruth Bader Ginsburg would later sit after a distinguished career as an attorney, said that Illinois could deprive women of the ability to practice the profession of lawyer.

When did the Supreme Court change that ruling? It is still kind of shocking to me that it was not until 1971--100 years later, in a case called Reed v. Reed, a case that came out of the State court system in Idaho--that Chief Justice Warren Burger, for a unanimous Court, said: Wait a minute. The 14th Amendment says all persons are entitled to the equal protection of the laws. Guess what. That applies to women.

How the Court in 1871 could have read those words and said it didn't apply to women is kind of hard to imagine, but it should make us humble because it should suggest that even educated, smart people could get things wrong.

Yet, 100 years later, in 1971, there was Reed v. Reed, which was a technical, quirky case about Idaho law that preferred men over women to be executors of estates so that, if there were two with equal claims in terms of being a relation of somebody who died intestate, they would prefer a man over a woman. That was a quirky, technical case that came to the Supreme Court. After 101 years, following the passage of the 14th Amendment, the Supreme Court said: Wait a minute. Women are citizens. Women are people. Women are entitled to equality.

Who wrote the brief in that case?

The brief in that case was written by a talented, young lawyer who had been one of nine in her class at Harvard Law School, who had often been told she couldn't do this or she couldn't do that, and who hadn't often been offered jobs along the way. The brief in that case was written by Ruth Bader Ginsburg. In very, very characteristic humility, she was the brains behind the case, but she allowed the case to be argued in the Supreme Court by the Idaho attorney who was very close to Mrs. Reed, who was pursuing the appeal in the Supreme Court.

When Reed v. Reed was decided, it was an earthquake. After 100 years, to finally say that, of course, women are equal, and, of course, women can make claims under the 14th Amendment, it was an earthquake, and it affected all aspects of American law.

Immediately after Reed v. Reed, Congress went through the entire United States Code. There were dozens--possibly hundreds--of distinctions in the code that gave preference to men over women or made some distinction between men and women. Yet, after Reed v. Reed, Congress scrubbed the laws of this country to eliminate second-class status for women, at least in law. We haven't completely gotten there but maybe in practice.

The State legislatures of all 50 States also did the same. There were all kinds of quirky and archaic rules that held women back in property and in civil matters--laws that, for example, said that a married woman, because of being married, couldn't prosecute a rape charge against her husband or that it was a defense to rape if the man married the woman--that this could be a complete defense and could wipe out criminal offenses.

All of these weird distinctions in law that had been allowed since the beginning of our country, even with a Constitution that guaranteed women's equality, were suddenly under the microscope with a new way of looking at our society, and it changed because of this tiny giant, Ruth Bader Ginsburg.

That is the only point that I really want to make today on the floor. As a Justice, Ruth Bader Ginsburg changed our country and had a big impact in Virginia in the decision about the Virginia Military Institute. That decision was about one institution, but it became a decision that applied to all institutions--that public educational institutions cannot deprive women of equal access to the educational experience.

I will just conclude where I started.

If Ruth Bader Ginsburg had never been a Supreme Court Justice, the work that she had done as an architect of helping the American legal system but also the American citizens understand that equal protection of the laws applies to women just like they apply to men would have entitled her to have been viewed as one of the most impactful lawyers of all time.

I would put her up with John Marshall, the first great Chief Justice of the Court, who really had to form so many of the doctrines that we now sort of take for granted about our American jurisprudence, and Thurgood Marshall, who, in many ways, carried the same fight for equality to make us realize that it applied to people regardless of the color of their skin and then served on the Supreme Court. They are the two lawyers of whom I think when I think of Ruth Bader Ginsburg, and I am not sure that anyone else is in the same class with her other than those two.

It is a sad time when someone of such magnitude passes, but I can tell from the 37,000 pieces of correspondence that my office received in the first 4 days after she left that, if you measure a life not by the day that it ends but by the influence that it has and the example that it sets, it is also a time in which we can just admire, be in awe of, and celebrate the accomplishments of a wonderful American.

BREAK IN TRANSCRIPT

Source