First of all, before we get to the politics: Thank heaven for Ruth Bader Ginsburg. She is truly one of the great 10 or 20 Americans of the last 40 years. Her work has made millions of people’s lives better. She has made this, just as the founders hoped great Americans would, a more perfect union.
I would prefer to go on in that vein, but these dark, greasy men and these dark, greasy times have rendered the pivot to politics in the second paragraph necessary and urgent. And so we pivot: What now?
It’s obvious: Mitch McConnell and Donald Trump are going to try to name a replacement before the election. McConnell has already said he would—in May, while he was appearing at a Chamber of Commerce lunch in Paducah, a small city in western Kentucky. He was asked, how would you handle a Supreme Court vacancy, in 2020, while President Trump was seeking re-election? “Oh,” he said, “we’d fill it.” There’s video. Go look at the smirk on his face as he says it.
UPDATE: Late Saturday night, McConnell said: “President Trump’s nominee will receive a vote on the floor of the United States Senate.”
It’s sick because, as we know, this same McConnell back in 2016 thought that February of an election year—February, not September!—was too late for a president to name a new justice in an election year. But that, of course, was when the president was a Democrat.
Place yourself in the White House private residence, or down in Louisville, at Chez Mitch, when the news about Ginsburg was conveyed Friday. Do you think either of them took even 30 seconds to reflect on her service to her nation? On the way she changed the conception of law and equality in that nation? Of course they didn’t. They were on the phone in minutes going over their options and plotting how to get away with this.
There will be a lot of talk on cable news Friday night and Saturday morning—pleading and sincere on MSNBC and CNN, utterly insincere but striking more or less the right notes on Fox News—that we should honor Justice Ginsburg’s legacy and not think, for now, about the question of succession. But trust me, Trump and McConnell are thinking about it this very second.
And here’s what they’re plotting. They will act normal for about a week. Not quite a full week; they don’t have that much time to spare. Then, some second-stringer, some fireballer from whom we expect no more like Tom Cotton, will start to say things like, “There is no precedent that demands a president wait.” Which of course is exactly the opposite of what they said in 2016 vis a vis Merrick Garland, but saying the opposite of what they said X years ago is all they do.
Trump and McConnell will move to put a hard right-winger on the court before the election. Don’t be naive. Don’t think: “They wouldn’t possibly try that.” Of course they would. And if (I hate to be macabre here, but I’m just making a point) Stephen J. Breyer were to perish tomorrow, they’d move to put two right-wingers on the bench before Election Day. It is who they are.
What power can stop them? There are only three that potentially could. Let’s look at them.
One, the Democrats. Some Democratic senators who might have Mitch’s ear, say Joe Manchin, will go to him. And Mitch will say: Fuck off. However, the Democrats have a card to play here, if Joe Biden will play it. The number nine (of Supreme Court justices) is neither in the Constitution nor law. Biden, and Chuck Schumer, can say: If you fill this seat now, if Biden wins, we’re expanding the Court to 11 or 13, and your majority is dead. And they should be ready to do it.
Two, public opinion. I expect polls will appear in the coming days showing majorities agreeing that no appointment should come until after we have a new president. As I’ve often written, our democracy is corrupted and screwed, but it’s still enough of a democracy that public opinion actually matters. Sometimes. And I think this is probably one of these times.
Three, kind of an ancillary point to public opinion: the fate of Republican senators up for re-election in tough states. Already, Alaska’s Lisa Murkowski, not up for re-election, has apparently said she will not confirm a justice until the next president is sworn in. That’s one. Democrats would need three more to say that they’ll follow Murkowski’s lead. Susan Collins, Cory Gardner, and Martha McSally seem the obvious choices. There are others. It all depends on the degree of progressive mobilizing in those states, to make those GOP senators know that if they acquiesce to McConnell’s games, they will lose. And of course there’s Mitt Romney, who does not face re-election but who might cast another conscience vote.
So all is not lost yet. But gear up for a fight. And as you do, always leave time in your mind for this remarkable, towering American. Everything we do in this corrupt period should be to honor all that she stood for.