The last time the sudden death of a supreme court justice fomented a political crisis was February, 2016, when Antonin Scalia quietly passed away in his sleep. At that time we were nine months away from a presidential election and Mitch McConnell’s dogma was that in an election year the American public needed to weigh in on the appointment at the ballot box. Now, we have the passing of Ruth Bader Ginsburg, 45 days before the presidential election, and McConnell has reversed himself 180 degrees. Ergo, political crisis.
Donald Trump weighed in this morning, with his usual level of insight and erudition.
.@GOP We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices. We have this obligation, without delay!
— Donald J. Trump (@realDonaldTrump) September 19, 2020
These are the three possible choices in replacing Ginsburg and it looks like Trump has opted for number one.
- He can replace Ginsburg right now, before November 3;
- He can replace Ginsburg after November 3, but before January 20;
- He can go along with the same rationale that accompanied the death of Scalia and wait for the next president and senate to tackle the matter.
Here’s the upside and the downside for each one. The Bulwark:
If Trump and Republicans replace Ginsburg it will destroy the remaining public legitimacy of the Supreme Court. Full stop.
The Republican party’s willingness to invent, bend, cherry-pick, or break rules and norms as needed in the pursuit of power would be undeniable. Already Republican activists have begun creating ludicrous, tortured rationales: Since 1880, no Senate with more than three left-handed members has failed to vote on the nominee of a president whose name contains the letter “d.” To anyone with ears to hear and eyes to see, these justifications are an affront to common sense and basic fairness. […]
Imagine what would happen if Ginsburg were replaced before November, and then Joe Biden wins the presidency and Democrats capture the Senate. There would be enormous pressure to somehow reform the Supreme Court. And it is not clear what principled counterargument might be mounted against such ideas, even if the “reform” proposals amount to enlarging and packing the Court.
There is also the fact of Justice Ginsburg’s last words: “My most fervent wish is that I will not be replaced until a new president is installed.” If we were a decent and civilized people, we would surely recognize and acknowledge the wishes of a stateswoman and public servant of her stature. At this point, that doesn’t appear to be happening. So let us move on to option number two, replacing Ginsburg by January 20 — and this is assuming a Trump loss, which, statistically at least, looks to be taking place.
If Trump and Senate Republicans are defeated in the election, but then try to replace Ginsburg before leaving office, the political retribution would be incalculable. The Democratic party would believe—with good reason—that there are no limits to majoritarian rule.
At which point, the powder keg would explode.
It appears at this point that option two is not even on the table, because the immediate “without delay” option is being taken. Even Lindsey Graham has weighed in on this, apparently doing a complete 180 degree reversal from where he was earlier on the topic. Here’s yet another Graham video which is not aging well.
“I want you to use my words against me. If there’s a Republican president 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." pic.twitter.com/quD1K5j9pz
— Vanita Gupta (@vanitaguptaCR) September 19, 2020
I fully understand where President @realDonaldTrump is coming from. https://t.co/qlhtEwTCdX
— Lindsey Graham (@LindseyGrahamSC) September 19, 2020
The best interpretation of this tweet is he “understands” what Trump is saying, but perhaps he’s stalling for time. Graham is in a hell of a spot, either way. If he goes with his previous statement, “use my words against me,” he upsets his master, if he goes along with Trump on this, I can’t see how anyone would ever believe a word coming out of his mouth in the future. This is a test of fire for Graham, no doubt about that.
Graham was one of the architects of the Garland rule, which is option three, letting the next president and senate handle the matter. At this point it looks like McConnell, Graham and Trump have all thrown that option to the wind, at the behest of the white nationalist base.
There are only a handful of ways out of this trap and all of them require the prudential coordination of elites. Which is . . . not something we have seen a great deal of in the last, say, generation of American life.
The conservative legal establishment could announce its preference to leave the seat vacant, thus taking out of play most potential nominees—and also giving cover to elected Republicans to agree that the decision should wait.
If the Federalist Society declines to defuse this bomb, then Mitch McConnell could do so by simply announcing that what was good for the goose is good for the gander, and that his caucus will not entertain a nominee. (More on this in a moment.)
If McConnell declines this path, then a small group of Republican senators could prospectively announce that they will join with Democrats to block any nomination. This would be risky, both because it would tempt Trump and Senate Republicans to call their bluff and force them to actually make the vote, and because it would free both Trump and other Republicans to demagogue the issue and preemptively delegitimize any justice not appointed by Trump.
Trump didn’t take the high road, as you knew he wouldn’t. He doesn’t see the big picture, never has, so he’s going along with McConnell. That leaves, on a practical level, the option of a number of Republican senators refusing to go along with an immediate replacement. Already, Murkowski, Collins, Grassley and Lindsey Graham — if he doesn’t defect — are saying that they would oppose an immediate replacement. Presumably Mitt Romney will join them. The only prudent course of action — and let’s say it, the only option with any class — is to honor Ginsburg’s last wishes, avoid another Garland debacle, and wait. If Graham can take a stance right now, and stand by his previous words, that would be an encouraging sign. Lindsey Graham is the linchpin here. May God help us.
In this awful year, this annus horribulus, this is yet one more test of who America is.
Remember that the man trolls more than he acts. And he has no immediate gain by helping the GOP’s dreams come true.
Agree. Trump is the ultimate troll. McConnell is the one to gain here, and the GOP generally speaking. Trump has no loyalty to them. Unless they can somehow pitch to him that this is in his best interests personally, I think an immediate replacement isn’t carved in stone. That said, never under estimate Mitch McConnell.
OVERestimation is the same mistake inverted. Do recall how he couldn’t even get his caucus on the same page for COVID-19 relief “efforts”. He’s likely weaker than he’s been in years.
Don’t forget, cruelty is the point for Trump. He doesn’t need any other benefit to himself apart from “drinking liberal tears.”
Cruelty helps with the decision process, no doubt. However, he is also a fairly lazy monster who likes to minimize his efforts where possible. If it takes work, as the nomination of SCOTUS justices do, he’ll threaten without doing, letting other handle it.
He will nominate whoever the Federalist society tells him to nominate.
He only does that with Putin, Dana…and even then, maybe not all the time. Do NOT make the same mistake Republicans originally did with him in thinking he is a Reagan or W clone.
Not sure how you got from A to B.
Considering how many tomes in the upcoming years he will be standing before them accused of criminal acts Trump-O has every reason to want a “stacked deck”.
*nods*
He has to get it done before Jan 3 – that’s when the new Congress is seated.
Also Mark Kelley will be seated by the end of November if he wins in Arizona
Two of the names on Himself’s short list got there by donations to Moscow Mitch and favors owed to congresscritters.
Lindsay Graham is in a very tough battle for retaining his seat in the Senate. If he doesn’t want to lose any of his supporters, then he had better stick with what he said earlier, that he will not vote on anyone now. If he flips, this might enrage enough of his supporters so much that they will dump him and choose Harrison.
People DETEST hypocrisy far worse than mere dishonesty or naked corruption.
If you can’t trust someone’s word what is left?
It is a vote loser.
But let them do it and increase the court to 15 members when we win.
Afraid I have to disagree with you, Concinnity.
HONEST people detest hypocrisy. DECENT people detest hypocrisy. MORAL people detest hypocrisy.
Show me the people who’ve been following and/or kowtowing to Trump over the past 3 years and 10 months who would REALLY “detest” hypocrisy. Hell, Trump’s most vocal fans LOVE his hypocrisy (as most of them can’t seem to remember what his position was just 2 minutes earlier).
Honest, decent people are still the majority.
Or what has America become?
We shouldn’t assume McConnell has the votes to confirm Trump’s nominee. Before the election it could cost some GOP senators their seats. After the election, Trump will be politically defunct and they will have no reason to support him.
Roger, that’s an interesting distinction to make. I think McConnell will go with “before,” thinking that those lost seats will be lost anyway and they may as well get a new Republican judge-for-a-lifetime out of it.
But we can hope the vote fails. Personally, I fear it won’t fail.
With his caucus in its current state of chaos due to money deprivation during a campaign season? I’ve no such gears.
Annos horribilis, you mean?
Annus horribilis, caused by anus horribilis
I have been wondewring (I’m not a lawyer so perhaps someone could enlighren me on this: If the incoming Attorney General re-opens the investigation of the allegations made against Brett Kavanaugh (considering the ‘investigaion’ at the time of the hearing was just a quick rubber stamp with a lot of witnesses who were ignored), can he be impeached and removed for lying under oath to Congress?
Technically, I would say so, though some of the fine details may need to be ironed out.
I like this question and I too, am interested in the answer.
My legal theory here…caveat emptor, I took two semesters of law as part of my undergrad degree…involves a couple of points:
1. Congress has plenary power of impeachment. They can impeach him for whatever they consider a high crime and misdemeanor. Lying under oath has been used to impeach before.
2. There are interesting legal distinctions between the process of confirmation that led to the vote and appointment, and any other history of his. What I mean is that when he was nominated, Congress had a right to use whatever it wanted to weigh the decision. If they missed something and no one was deceiving them, then there might be a legal theory that this is their tough luck. But again, the power of impeachment is pretty unlimited, rendering this sort of moot. I think there might be better examples where Congress makes a decision they can’t undo just because they missed something where there’s not an unlimited power to undo the decision.
3. I don’t think we could ever get to 67 votes to impeach a sitting justice in this environment.
I feel we are not unlike the nation in the 1840’s and 50’s, marching toward a civil divide that will become violent and transformative, but seemingly powerless to prevent it.
OMG could McConnell be any more of a ***bag?
He only does that with Putin, Dana and even then, maybe not all the time. Do NOT make the same mistake Republicans originally did with him in thinking he is a Reagan or W clone. http://www.jobztip.com