Let’s be clear: the position of the Republican Party is that it alone has the right to name Supreme Court justices, to utilize mail-in ballots, to occupy the White House, and to rule full stop.
The modern GOP has no shame. Its tortured excuses for reversing itself on positions it took in the recent past, like filling a SCOTUS seat in the last year before a presidential election, or for doing things it once excoriated Democrats over (deficits, executive orders, handling of classified material, committing impeachable offenses, etc etc etc) goes well beyond mere hypocrisy. These are the deliberate actions of an organization that has openly declared its contempt for democracy and dedicated itself to the brazen pursuit of authoritarian one-party minority rule at all costs…..and guess which party they have in mind to fill that role?
But all that ought to have been clear four years ago when it sold what was left of its soul to Donald Trump.
McConnell and the Republicans are currently tying themselves in knots promoting convoluted reasons why it’s hunky dory for them to seat a new Supreme Court justice just weeks before a presidential election, when five years ago they refused even to even to meet with Merrick Garland on the grounds that ten months out was too short, and the decision should be left to the American people via the new president we were about to choose at the ballot box.
This reversal comes as no surprise. In May 2019 McConnell openly announced—with a snickering, weasely smile—that should a vacancy in the Supreme Court appear during Trump’s final year in office, he would absolutely fill it. Moscow Mitch long ago made it abundantly clear that he is the owner of not a single principle except the ruthless pursuit of brute power. He is the gravedigger of democracy and will go down in history as one of the most destructive influences on our republic in modern times.
So first things first. Let’s dispense with the absurd claim that the GOP has a leg to stand here.
One risible claim the GOP is making is that this case is different because now the president’s party controls the Senate. Bullshit. That control means nothing in terms of the law. It just means that this time the GOP has enough votes to ram their own nominee through, whereas last time it feared it would be unable to block the Democrats’ choice; otherwise they would have held an up-or-down vote with confidence that they could reject him. Not that they care a whit about showing their brutality—they relish it, in some ways. But even monsters prefer the path of least resistance, when it’s available.
You’ll also hear Republicans talk about the so-called Biden Rule, which wasn’t a rule at all, but simple speculation, and would have been fine if applied fairly and consistently. The McConnell Rule, by contrast, is “I do what I want and you can fuck off.”
You may also hear about the Reid Rule, which refers to 2013, when then-Majority Leader Harry Reid and the Democrats exercised the “nuclear option” and eliminated the filibuster for all judicial nominees…..except the Supreme Court. That may have been tactically wise or unwise, but it was McConnell and the GOP who in 2018 expanded that rule to include SCOTUS nominees in order to get Brett Kavanaugh through.
No one except the most benighted, Kool Aid-drunk red-hatted partisan can possibly take any of these rationalizations seriously.
Disagree? Remember this:
In November 2016, when the blocking of Garland looked like little more than a futile delaying tactic ahead of an inevitable win by Hillary, several prominent Republican senators suggested that, should she win, they would continue to block ANYONE she nominated to the SCOTUS for four years or more.
So the rationalization surrounding replacing Justice Ginsburg are so much kabuki. Any sentient person can see that the GOP will simply do anything and everything, no matter how unjust, to keep any Democratic nominee off the Supreme Court…..part of its broader scheme to eviscerate the mechanisms of a functioning democracy altogether, from undermining fair elections to denying Congressional oversight of the executive branch (NB: GOP-controlled only) to partnering with hostile foreign powers, all in the interest of maintaining its own power in defiance of the will of the majority.
WE DON’T NEED NO STINKIN’ REASONS
Of course, coming up with a plausible justification is not necessary and ultimately irrelevant: the GOP intends to nominate a justice anyway, no matter how self-evidently flimsy and irrational the excuse. They don’t even seem to be putting much effort into the charade.
Republicans often sneer, “Everything Trump and McConnell are doing are within the rules. You Democrats are just a bunch of crybabies.”
Again, bull-shit. A functioning democracy depends on the good faith of its participants, and the GOP routinely acts in the worst faith possible. The Garland incident is a prime example.
In 2016 McConnell flagrantly flouted the Senate’s duties and the clear intent of the Founders (so much for originalism) by inventing this counter-constitutional idea that there was some “use by” date past which a presidential nominee to the Court was invalid. Had the roles been reversed, you can be sure that the GOP would have screamed bloody murder at a Democratic attempt to do likewise, and not been deterred by Chuck Schumer insisting on technicalities or inventing new rules.
That was plenty outrageous all on its own. But it would have been one thing if Mitch had at least been consistent and stuck to that invented principle. (Ha—just kidding!) In terms of following the letter of the law, the current rush to fill Justice Ginsburg’s seat is actually not nearly as onerous as the Garland fiasco……but the hypocrisy of doing so after what the GOP did to Garland, and the absolutely dishonest, faux highminded rhetoric that accompanied it, now conveniently forgotten, makes it much much worse.
But as Jane Mayer writes in The New Yorker, “(A)nyone familiar with the Republican senator from Kentucky’s long political career knows he couldn’t care less about hypocrisy; like President Trump, he is immune to shame.”
(B)ehind closed doors McConnell has been raising money from big conservative donors for months by promising that no matter how close it might be to the election, he would install Trump’s Supreme Court pick. As a former Trump White House official told me, “McConnell’s been telling our donors that when RBG meets her reward, even if it’s October, we’re getting our judge. He’s saying it’s our October surprise.”
The only part of the GOP defense that is remotely true is that Democrats have long played softball, partially an admirable function of their respect for the rule of law and the spirit of democracy, and partially a naïve and self-sabotaging refusal to recognize the threat we are facing and meet the ruthlessness of the other side in kind. We see it even now in the media’s reflexive treatment of the Supreme Court vacancy as another horserace to be handicapped, rather than what it is: the latest attack on our core democratic values.
The time for that sort of thinking is long over.
AN INSIDE JOB
Many an authoritarian party came to power through entirely legal means, then slowly strangled democratic rule from within. Now we are seeing that very thing happen in these United States.
We are in a horror movie where the call is coming from inside the house.
In 2015 Noam Chomsky opined that the GOP had ceased to be a conventional political party at all in the conventional American sense of the term and become a radical insurgency—and that was before Trump. But we need not go that far left to find almost identical criticism. Way back in 2012, Thomas E. Mann of the Brookings Institution and Norman J. Ornstein of the American Enterprise Institute wrote that the Republican Party had become “ideologically extreme; scornful of compromise; unmoved by conventional understanding of facts, evidence and science; and dismissive of the legitimacy of its political opposition.”
The GOP’s lack of principle is now at a level that beggars fiction. Indeed, the issue goes well beyond hypocrisy and into the very ideology of power characteristic of a totalitarian state. In such a state, there is no such thing as a “loyal opposition.” Rival parties and politicians cannot be countenanced; they must be demonized to a degree usually reserved for foreign enemies in wartime.
In that regard, Trump’s reign accelerated a Republican trend that had begun in earnest in the Clinton years, as pioneered by Newt Gingrich, and accelerated under Obama by the Tea Party: the notion that Democratic governance is by definition illegitimate. With the Merrick Garland outrage, McConnell marked a defining moment in that process: a stark announcement, papered over with the thinnest and most absurd parliamentary pretense, that only Republican presidents had the right to name justices to the Supreme Court. The Ginsburg vacancy bookends that in the most painful possible way, marking how far our democracy has already fallen.
Trump has taken that Gingrichian ethos to its logical, chilling extreme, wherein a President of the United States can suggest that his opponents ought to be jailed merely by virtue of opposing him, or hint that his followers ought to use “Second Amendment remedies” to unseat Democratic governors, or to defend his ostensible right to remain in office, or anything else they (or he) wanted. Under Trump, the “Democrat Party,” as Republicans insisting on calling it, denying its foe even the right to choose their own name, is not simply a group of fellow Americans who happen to hold differing views within our communally agreed upon system of representative democracy. They are traitors and criminals. Nothing they do is allowable.
That, my friends, is the fundamental operating principle of authoritarianism.
The right wing riposte, of course, was the left is demonizing them in the same way. But two people arguing whether the earth is round or flat are not both correct simply because of their entitlement to their opinions. That counter is itself part of the insidious tautology of anti-democratic movements, one that deploys false equivalences to create a facade of respectability, exploiting the goodwill of the very system it is in the process of destroying.
LET’S DO THE NUMBERS
Without losing sight of the greater Republican threat and the need to address it, let’s talk short term tactics on this latest battlefront.
Can we find four Republican senators with both the principle and the backbone to stop this travesty?
(The magic number goes down to three if we can delay the vote until after the election, even just into the lame duck period, and if Mark Kelly wins in Arizona, whose state law allows him to be seated immediately. He’s leading right now.)
Speaking just hours before word of RBG’s death, Lisa Murkowski indicated she would oppose a vote before Election Day, and has since re-affirmed that. Susan Collins too has issued a statement saying she would not support a vote. Will she fold? It’s the understatement of the year to say that her record’s not good. There’s a lot of speculation that once again Mitch is “allowing” her to take this stance, in this case to try to save her rapidly slipping chances to hold onto her seat, and that if the vote is held after November 3rd, she’ll have nothing to lose either way and will vote to confirm.
Romney? Maybe, but far from a sure thing. Mitt’s (partial) act of principle during the impeachment does not erase the fact that he is a dyed-in-the-wool old school conservative eager to entrench right wing control of the Court. Let’s see if his flash of integrity has legs.
Who else? Sasse? No. Tillis? No. Cory Gardner, who’s in a tough reelection fight in an increasingly blue state? Unlikely. Lamar Alexander? You mean the retiring Republican eminence grise who had nothing to lose but still led the voted to acquit Trump last February, promising us that he’d learned his lesson?
How about Chuck Grassley? Last August, Iowa’s senior senator said he couldn’t support a confirmation in an election year after supporting McConnell’s blockage of Garland in 2016. Though technically what he said was, “If I were chairman of the committee and this vacancy occurred, I would not have a hearing on it because that’s what I promised the people in 2016.” Of course, he’s not chairman of the judiciary committee, Lindsey Graham is, so maybe that offers Chuck a loophole through which to weasel his way out.
Speaking of which, what of Senator Graham, who is on video proclaiming that, in the interest of consistency, that he would not support confirming a Supreme Court nominee in the year before the 2020 election, even boasting that he should be held accountable for his comments. (He made a similar claim two years before, in 2016, also caught on tape.)
Hold on to your hats: Lady G has now reversed himself. I’m shocked, shocked!
The fact that his promise is on film carries no more weight than the videotape of his speech during the Clinton impeachment did during Trump’s trial, when he did a similar partisan 180.
In terms of the election, Justice Ginsburg’s death has jolted what until now was a remarkably stable race, but it’s not clear how much, or which side will benefit most in terms of energizing its respective base. We’ll know in November; my guess is that it’s probably a wash. (Since Friday, ActBlue has raised more than $100 million, a huge sum, but Republicans are equally motivated. I’ve even heard of anti-Trump conservatives—or Trump-skeptical ones—who support him ramming through a new justice, and then losing in November.)
One thing that’s clear, however, is that the American people have more integrity and common sense than the GOP: new polling reports that that 62% of Americans think the vacancy should be filled by the winner of the election. (Even half of Republicans feel that way.) So the smart move for the Trump and the GOP would be to announce his nominee and use that as a promise for his second term and a chit to drive Republican voters to the polls, rather than trying to foist someone on us before the election and risking blowback. After all, even if he loses, McConnell will have no compunction about ramming a new justice through before January. (Unless he is counting votes and worried about Mark Kelly.)
But Trump’s never been big on delayed gratification.
The more pertinent point, however, is that the GOP expects Trump to lose.
The fact is, McConnell wants to retain control of the Senate much more than he wants another conservative justice on the Supreme Court, so in the interest of selfishness and simple gamesmanship he might indeed delay the vote until after November 3rd, then push it through afterward regardless of the result. Should Trump lose, a lame duck confirmation would be an even more outrageous middle finger to the will of the people—not that McConnell cares—but as it would be safely after Election Day, Moscow Mitch will have zero fucks to give.
METHODS OF COUNTERATTACK
Right now Democrats have very little leverage, and if recent history is any guide (NB: it is), none of it will deter the Republicans one whit. But the Democrats should rattle those sabers anyway.
Jeffrey Toobin suggests a fourfold path if Biden wins and the Democrats take back the Senate, including an end to the filibuster (to deprive McConnell of his chief weapon to obstruct the new administration); statehood for the District of Columbia and Puerto Rico (to bring four more Democratic votes into the Senate); expansion of the number of lower court federal judges; and the big gun, a much-discussed expansion of the Supreme Court.
Might that start an arms race that results in a Senate-like 100-member Court someday? Maybe. But it’s one of the few ways the Democrats have to pressure—or punish—the GOP, and the long term risks might be worth the short term tradeoff. (Reforms to the confirmation process and antiquated lifetime appointment policy would help.) If we don’t do something, there will be no more democracy left to worry about.
Is there also the danger that such threats will help the Republicans energize their base by allowing them to claim that the Democrats are usurping the rule of law? Sure, but they’re already claiming that….in fact, they’re already claiming that the DNC is some sort of Marxist Illuminati puppeteering radical anarchist terrorists in the streets. How much worse can the rhetoric get?
(Objective reality doesn’t enter into it, in case you’re wondering. I happened to be in Pennsylvania this past weekend where Trump is running TV ads saying that the “economy is in ruins” thanks to Joe Biden. That’s Joe Biden, Private Citizen, accused of ruining the economy by the man in charge of the economy.)
Would a Supreme Court unilaterally expanded by a Democratic administration have no credibility? Let’s hope that’s our biggest problem. Moreover, the current Court has already been thoroughly discredited by the Garland/Gorsuch and Kennedy/Kavanaugh maneuvers. If McConnell and Trump push through yet another nominee, its credibility will be degraded even more.
To be clear, I’m not advocating a “be just as bad as they are“ methodology. But the Marquise of Queensberry rules that we were playing by in 2016 are what led to the Merrick Garland debacle in the first place. (That and the overconfidence that Hillary would win anyway, and the failure to believe that the GOP wouldn’t carry out its then-unthinkable threat of four years of filibuster.) Hindsight is 20/20, of course; I’m not blaming anyone for failing to understand that the entire game had shifted into a far more brutal phase. But now that shift is clear and we have no excuse for fighting back just as hard.
ANGELS AND DEMONS
Among the many sorrowful things about Ruth Bader Ginsburg’s passing is that all this Machiavellian politicking has crowded out what should be a period of deep national mourning and tribute to this American titan. RBG more than deserves her rock star status; it will take decades for history to fully appreciate her impact. To lose a pair of towering human rights figures like her and John Lewis in a two-month period is gutting.
Meanwhile, Stephen Miller unaccountably continues to live and breathe and draw a federal salary at taxpayer expense. There is no God.
It must be said that the conservative response to RBG’s death has been mostly polite and respectful in public. (In private, I suspect there has been a festival of high-fiving.) But of course, this being the American right wing we’re talking about, there have been some notable exceptions.
A friend reports that the day after RBG’s death, at the wealthy lakeside community where he has been holed up during the pandemic, a flotilla of boats and yachts appeared flying Trump Pence 2000 / MAGA flags, bearing passengers openly celebrating Justice Ginsburg’s death. Such despicable behavior is self-condemning, for any decent human being. These of course are the same kind of Trump flotillas that have recently materialized in numerous waterfront locales, including my own summertime haunt of Atlantic City, as well Texas, where several Trump-flagged boats sank earlier this month. (Attention: metaphor.)
Though it was prefaced with perfunctory praise for her, McConnell’s statement announcing that he intends to fill Justice Ginsburg’s seat might also be included in this catalog of disrespect, coming as it did less than two hours after word of her death.
But leading the way on that bush league front was Rep. Doug Collins (R-Ga.), the snarling toady whom you may remember from the impeachment, who tweeted:
RIP to the more than 30 million innocent babies that have been murdered during the decades that Ruth Bader Ginsburg defended pro-abortion laws. With @realDonaldTrump nominating a replacement that values human life, generations of unborn children have a chance to live
Despite being a great humanitarian (source: Collins himself), this modern day Gandhi has refused to apologize for his remarks, insisting he wasn’t celebrating Justice Ginsburg’s death (his boat must be in for repairs). He also argued that Trump and McConnell should absolutely fill her seat immediately. In another tweet, Collins accused the Democrats of “eroding the integrity of our nation’s highest court” (Projection 101), and grandstanded with a proposed constitutional amendment to block such court packing. (Chances of ratification: zero).
Collins, btw, is running for the Senate in Georgia against another vile Republican Kelly Loeffler, the richest member of Congress, who is embroiled in conflict of interest and insider trading scandals of her own, thus offering Georgia Republicans a choice between pneumonia and bronchitis. (Georgians: vote for Democratic candidate Dr. Raphael Warnock.)
But it could be worse. In Delaware, Republican Senate candidate Lauren Witzke posted a racist, counterfactual meme so vile I won’t even dignify here. (Since deleted….but the Internet is forever, Lauren.) Witzke was once an opioid and heroin addict who claims to have worked for illegal Mexican drug cartels, as well being a QAnon supporter, self-described flat earther, and 9/11 truther. In another only marginally less awful tweet, she wrote:
I will not praise the woman who spearheaded the total destruction of Western Civilization. I refuse to cheer the career of a woman with the blood of millions of dead babies on her hands. David didn’t mourn the death of Goliath. I will not apologize for standing up for life.
I guess perspectives on who’s destroying Western civilization vary.
INSIDE THE ABATTOIR
If McConnell succeeds in this latest SCOTUS armed robbery, Donald J. Trump will have been allowed to put fully a third of all the justices on the Supreme Court, including the one that may well decide whether or not he gets a second term. That would be infuriating in any event, but even more so when the President in question is an unfit monster who himself ascended to his position under a black cloud of foreign interference.
All three of those seats will have been acquired under shady circumstances at best, given that the only quasi-legitimate one—Kavanaugh replacing Justice Anthony Kennedy—was engineered by Kennedy’s well-timed retirement, followed by the memorable shitshow of Barfin’ Bart crying and whining and throwing a self-pitying temper tantrum over credible allegations of sexual assault, and mocking a mockery of judicial nonpartisanship in the process. (And shall we talk about Anthony Kennedy’s son arranging suspicious loans for the Trump family from his position at Deutsche Bank?)
Jane Mayer again:
(Norman Ornstein of the American Enterprise Institute) foresees the potential for a historic political rupture if Trump, who lost the popular vote in 2016, and McConnell successfully seize a Supreme Court seat for a second time. “If McConnell gets away with this again, this will be a Court like none we have ever seen in our lifetime. We will be back to the pre-New Deal era,” Ornstein said, referring to one of the most conservative courts in the last century. He predicted, “If McConnell does this, it’s not just an act of hypocrisy, it’s one of the most dangerous breeches we’ve seen in our lifetime. There will be consequences. I think there would almost be revolution in this country.”
Herein lies the real point.
Progressives naturally bemoan the current right wing chokehold on the Court and the kind of decisions it will hand down, even as conservatives celebrate that very thing. A 6-3 right wing majority would be even more extreme, of course. But those gleeful conservatives ignore the cost of their victory and the underhanded means they have used to achieve it. They may get the kind of decisions they crave, and for generations to come, but they have already gravely undermined the credibility of the Supreme Court in the eyes of tens of millions of Americans—a majority perhaps. That is not an abstraction, but a grim fact that goes directly to the health of the nation and our communal faith in its institutions.
Not that the GOP cares one whit. But it’s a terrible loss for our democracy, and another step on the road to banana republichood.
Well done, Mitch.
The GOP has enjoyed an incredible run of luck, beginning with Scalia’s death, running through Trump’s razor-thin Russian-aided win (asterisk for the history books), Bob Mueller’s narrow view of his remit, and this administration’s thus far largely successful obstruction of justice. RBG‘s death may turn out to be another lucky break for them. If Trump manages to win this November, legally or otherwise, that will be an even bigger one.
But that lucky streak will not last forever. The six out of ten Americans who are not down with this despicable regime will eventually tire of being shit upon, treated with contempt, victimized, and generally being forced to watch this criminal gang masquerading as a political party run roughshod over our ideals. Trump and the GOP are currently busy trying to scare the hell out of the conservative base with fearmongering about antifa and radical leftist mobs in the street. If enough of these egregious, blood-boiling outrages continue, their fever dream might come true.
Republican lust for power knows no bounds, but the GOP would do well to remember: pigs get fat, but hogs get slaughtered.
A reckoning is coming, and sooner or later, one way or another, this Republican reign of terror is gonna come to an end.
Issues related to the Supreme Court are a regular feature of this blog. See also: The Ghost of Merrick Garland, November 25, 2017; Five Blind Mice , July 11, 2018; “Blessed Be the Fruit”—Patriarchy, Tyranny, and the Supreme Court, August 13, 2018; and The Ghost of Merrick Garland, Part II, October 10, 2018.)