The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.— Chuck Schumer (@SenSchumer) September 18, 2020
One hour and four minutes later, Mitch McConnell confirmed what we already knew: He doesn’t care about hypocrisy, and he has no shame.
The Senate and the nation mourn the passing of Justice Ruth Bader Ginsburg and the conclusion of her extraordinary American life.— Leader McConnell (@senatemajldr) September 19, 2020
My full statement: pic.twitter.com/NOwYLhDxIk
In a Friday night memo to his caucus, McConnell halfheartedly split hairs, pretending there was a principled reason to sideline Garland but ram through whatever Federalist Society ghoul Donald Trump thinks might save him from federal prison. No one believes that, of course. McConnell’s principles always begin and end with power. And despite the performative hand-wringing we’re about to witness, his caucus – cowed by (or in thrall to) a party that’s effectively become an authoritarian personality cult – will be with him when it matters.
Don’t imagine otherwise. Keep your eye on the ball.
Ignore the logic pretzels sycophants like Lindsey Graham will contort themselves into to rationalize the categorical statements they made four years ago. (“I want you to use my words against me. If there’s a Republican president [elected] in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.”) Ignore, too, faux-institutionalists like Chuck Grassley, who said in July that if he were still chairman of the Judiciary Committee, he wouldn’t hold hearings, but that’s Lindsey Graham’s job now, so what can you do? And ignore the pathetic desperation of Cory Gardner, the cravenness of the never-elected Martha McSally and Kelly Loeffler, and the convenience of Susan Collins’s impending attack of “conscience.”
None of it matters.
You can’t shame the shameless. The ruthless only care about winning. Complaining about rules and norms and fairness and hypocrisy might produce knowing nods from Beltway pundits, but it will also lead to an activist Supreme Court that overturns Roe and the Affordable Care Act, rolls back LGBTQ rights, eviscerates environmental regulations, shreds voting protections, and shrugs when the Department of Homeland Security declares Black Lives Matter protesters antifa terrorists and begins summary executions.
This is total war. Recognize it for what it is, and fight accordingly. That’s the only chance we’ve got.
We know what’s about to happen: Trump will soon make a nomination, and McConnell will decide whether to rush it through before the election or in the lame duck. Each carries risks.
Do it before, and you’ll gin up the religious right, but Trump’s troubles with suburban women will multiply exponentially, probably eliminating whatever chances McSally, Collins, and Gardner have left, and maybe taking down Joni Ernst and Thom Tillis, too. So you get the Supreme Court seat but lose the Senate.
Punt, and your vulnerable senators can demur until after the election. But if Republicans lose, the optics of a lame-duck confirmation could be generationally ruinous. Besides, Collins and Lisa Murkowski have already said the next president should get the nomination, and Mitt Romney might follow suit. If McSally loses what is technically a special election in Arizona – as seems likely – Mark Kelly will be sworn in within weeks, giving Republicans a very short window before Democrats have enough votes to reject the nominee.
So McConnell will probably take the bird in hand. Trump is pushing for a quick confirmation, after all. More important, McConnell knows the Senate is a coin flip and Trump is an underdog. Why chance it?
There’s another, more sinister reason for the urgency. As quickly made the rounds on Fox News and among right-wing pundits the night Ginsburg died, Republicans are publicly fretting over the possibility that an eight-member Supreme Court could deadlock over a contested election, creating a constitutional crisis. Naturally, this didn’t bother them in 2016. But this year, Trump’s path to victory almost invariably involves asking judges to disqualify enough absentee ballots in key states to secure an Electoral College majority. Apparently, they believe it would be less of a constitutional crisis for Trump’s newly minted justice to cast the deciding vote to disenfranchise thousands and award him the White House.
I’m not sure they’ve thought that through.
Something else to consider: When this nominee is confirmed, a majority of the court will have been appointed by Republican presidents who lost the popular vote. At least three will have been opposed by senators who represented overwhelming majorities of the population. If Trump wins, he will probably do so again without popular legitimacy, meaning that while the Democrat received more votes in seven of the last eight elections, the Republican “won” four of them.
As I said, this is total war. And the only way to fight a total war being waged to prop up a privileged, shrinking minority is with a cleansing fire of democracy. Indeed, the threat of actual majoritarian rule might be the only thing that keeps McConnell from crossing the Rubicon.
The prescription is simple enough (to be clear, I didn’t invent it): Democrats should announce that if McConnell moves ahead with hearings, they’ll spike the continuing budget resolution the House planned to vote on this week and shut down the government, object to unanimous consent requests, and use every other procedural tool at their disposal to gum up the works. And if they win the White House and Senate, they’ll immediately kill the filibuster, make Puerto Rico and Washington, D.C., states, add 150 or so seats to the House of Representatives (a long-overdue fix), and then add four seats to the Supreme Court so President Biden can stack the bench for the next 50 years. After that, they’ll pass robust voting-rights protections and ban partisan gerrymandering, then push through an aggressive agenda of health care and climate change reforms that Republicans will have no way to stop.
Of course, if McConnell backs down, Democrats should do it anyway. But let’s keep that to ourselves for now.