Donald Dossier: Seizing the Moment to Fill RBG’s Seat
WHY YOU SHOULD CARE
Because Trump has the chance to cement a conservative majority in the Supreme Court for a generation.
By Nick Fouriezos
Picture the surreal quality of the moment: Donald Trump walks toward the cameras as “Tiny Dancer” begins playing over the loudspeakers. Just minutes after the end of his rally in an airport hangar in Bemidji, Minnesota, the president is informed by a journalist of the very new reality: Ruth Bader Ginsburg has died. Blue jean baby — the song’s first words — coincides with Trump’s response.
It was a noteworthy moment of surprising civility. Take note and remember it, because there will be no more graciousness this election cycle from anyone on either side of the aisle. Not with a pending judicial process of this magnitude — to replace the 107th U.S. Supreme Court justice — threatening to tear the seams of an already frayed American fabric.
This sudden court vacancy is a boon for Trump and his reelection bid as it takes the focus off the nearly 200,000 dead from COVID-19, the flagging economy and the racial unrest across America. It allows Trump to consolidate his base — older white voters — who had drifted in recent polls toward Joe Biden in key swing states, most notably Florida.
Given the fact that Trump has actually gained (slight) ground with Black, Asian and Hispanic voters since 2016, recapturing his white base could lead to a major comeback. After all, reminding them that the Supreme Court was at stake was key to his 2016 victory and why Trump announced his new SCOTUS pick list earlier this year. It’s not hard to imagine that Trump will ramp up the theatrics again, perhaps holding rallies to trot out finalists and potential nominees.
Amy Coney Barrett, who may have been Trump’s backup plan to Brett Kavanaugh in 2018, is the leading contender. However, Trump could also select a rogue pick, such as Texas Sen. Ted Cruz — he was among Trump’s September additions — to #ownthelibs and create more of the chaos he loves. The Senate may quickly confirm Cruz just to get him out of its hair, triggering a Texas special election … pitting Beto O’Rourke against George P. Bush in a cage match for the ages.
Meanwhile, Senate Majority Leader Mitch McConnell has already vowed to seat whomever Trump appoints, despite having refused to vote on Obama’s appointee in 2016 to give the American people “a voice in the selection of their next Supreme Court justice.” The fact that then-Justice Antonin Scalia died 269 days before that year’s presidential election, while Ginsberg passed away 46 days before this one, is just butter on the greased pole of slippery words. It was, of course, always about power, not principles.
Because of that, the only question for McConnell is whether it benefits Republicans most to fill the seat before the election or in a lame-duck session before the newly elected Congress takes over. Filling the seat quickly may galvanize Trump supporters, ramp up enthusiasm for GOP Senate candidates and give more latitude for defectors: The current 53-person Republican majority could afford to lose three votes and still have Vice President Mike Pence break a tie. It would also be a slightly better strategic position for Trump if election results are called into question, leading to a Supreme Court showdown.
But a preelection Senate vote may devastate some Republican candidates’ chances at the polls on Nov. 3, so McConnell will likely wait until the lame–duck session to force through the vote. It would also allow Trump to keep the heat on voters, who would feel even more pressure to back him on SCOTUS or risk losing a generational chance to stack the court in favor of conservatives.
Democrats will adamantly oppose any action before the next president and Congress have taken over, citing Republicans’ own words from four years ago — Chuck Schumer already has.
Former President Barack Obama and presidential candidate Joe Biden have issued similar statements. “The voters should pick a President, and that President should select a successor to Justice Ginsburg,” Biden tweeted late last night.
Still, other than procedural delays, their options remain few, just as they did two years ago with Kavanaugh. They will likely argue aggressively that Roe v. Wade is at stake, although insisting it will be stripped away may backfire and actually encourage voters to back Trump. While no GOP senator has gone on record since Ginsburg’s death, Mitt Romney of Utah, Lisa Murkowski of Alaska and Susan Collins of Maine have suggested in the past that they would oppose a rushed vote. Collins, though, may be more amenable after her intensely competitive November election is over.
So even if Americans elect Biden to the presidency and give Democrats control of the Senate in November, McConnell will still likely usher in a new Supreme Court justice. There is nothing that prevents it, other than the concepts of fairness and integrity, the very principles Republicans used to justify their governing choices in 2016 that should still apply in 2020. If there is any lesson to be learned from the Trump presidency, it’s that the cynical play wins the day.
Trump and McConnell taking this precedent invariably will lead to Democrats tearing norms down as well. Many, including some sitting senators, are already promising to expand the Supreme Court, packing it with liberal justices. But doing so could ruin whatever credibility the highest court of the land still has with the public. The filibuster for judges is long gone, and soon may disappear from legislative bills as well. Finding consensus or commonality could easily cede to an all-or-nothing politics, where parties seize as much power as possible in their short stints of control. Or, perhaps, unstoppably long ones, should they seize enough of it to flout democratic safeguards.
While some mock the hand-wringing over the loss of civility as naive, it is a sense of justice (transcending political persuasion) that has kept the American social contract intact. This summer has shown what happens when people lose faith in the fairness of that contract.
So it’s worth ingraining that image of Trump on the tarmac, likely one of the last nods toward civility in this coming storm of judicial process. At least it was “Tiny Dancer” playing during that solemn moment, not another Trump rally favorite like “Macho Man” or “YMCA.”