Ruth Bader Ginsburg’s life in the law cast a long shadow. In death, she casts a long shadow, too.
Since Justice Ginsburg was both historic figure and reliable liberal vote on the United States Supreme Court, replacing her was always going to be contentious. After all, the court’s direction for years to come is at stake. Candidate Donald Trump made the “activist federal courts” a major campaign issue in 2016. As president, he and Senate Majority Leader Mitch McConnell have delivered on that issue. They have confirmed over 200 new judges, almost all of them strenuously opposed by Democrats. Now, he has been given his third opportunity to nominate a Supreme Court justice. His first appointment replaced the late conservative icon, Antonio Scalia, with another conservative, Neil Gorsuch. His second replaced Anthony Kennedy, a moderate conservative and occasional swing vote, with Brett Kavanaugh, a more consistent conservative vote.
Replacing any Supreme Court justice is important, but substituting a conservative for a liberal giant like Ginsburg or the 82-year-old Justice Stephen Breyer, when he retires, would be far more consequential. That’s why the fight over the Ginsburg’s vacant seat will be so fierce, worse even than the brawl over Kavanaugh, who was smeared by multiple, last-minute allegations of sexual assault, none of which were substantiated. That fight was so toxic that several senior Democrats openly rejected the idea that Kavanaugh should be presumed “innocent until proven guilty,” a bedrock assumption of Anglo-Saxon jurisprudence for over a thousand years.
The Democrats’ immediate demand is for Ginsburg’s seat to be left vacant until a new Senate and president can fill it. Senate Minority Leader Chuck Schumer made that demand Friday night, shortly after Ginsburg’s death was announced. All other Democrats will follow. They will pointedly add that the Republicans, who controlled in the Senate in 2016, refused to give Merrick Garland a hearing or vote after President Obama nominated him to fill Scalia’s seat. Republicans said then that nine months was too close to the election. It would be grossly unfair, Democrats say, for those same Republicans to move forward with their own nomination now.
McConnell has already rejected that argument, promising to fill every vacancy on every federal court during the current Congress. He is saying that the current situation is different since the presidency and Senate are now controlled by the same party. He will quote Democrats’ statements in 2016, when they insisted on voting immediately to fill the Supreme Court vacancy.
All of them are hypocrites. They have flipped their positions, and their justifications (then and now) are nothing more than cloaks for political advantage. They don’t care about consistency or even logic. They are fighting to win control of the Supreme Court and defeat the other side in November. They will say whatever helps their cause and hope voters forget whatever they said last time.
For the upcoming election, the main point is that Justice Ginsburg’s death elevates the importance of judicial appointments, especially those for the Supreme Court. That probably helps Democrats, at least a little, because Republicans were already highly motivated about that issue. Any extra motivation will be on the Democratic side. Expect them to emphasize the court’s importance for reproductive rights, hoping that argument resonates with female suburban voters.
Even before this fight, America was slogging through a prolonged constitutional crisis, compounded by an erosion of trust in all our institutions. Another nasty, high-profile battle like this deepens existing cleavages and prolongs the pain. Both parties have become much more ideological, less willing to compromise, more willing to treat their adversaries as “the enemy,” not as the loyal opposition. On issue after issue, Democrats and Republicans are promoting starkly different visions of America’s history, the role that should be played by federal bureaucracies and the courts, and our country’s path forward.
These long-simmering disputes boiled over during the Trump presidency. The very leitmotif of his presidency has been this sustained constitutional crisis, which Republicans attribute to frenzied, relentless attacks on Trump and Democrats attribute to a rogue president, unfettered by traditional norms and constitutional restraints. Or so each side says, and keeps repeating.
Democratic Party activists and elected leaders not only consider Trump dangerous, many have refused to accept him as the legitimately elected president. The mainstream media mostly went along for the ride, promoting the Trump-Russia collaboration line for three years until the Mueller Report basically killed it. During all that time, Rep. Adam Schiff, chairman head of the House Intelligence Committee, insisted that he had damning, incontrovertible evidence Trump had colluded with Russia. He never produced it. Even now, senior officials from James Comey’s FBI say Trump is somehow controlled by the Kremlin. Again, they offer no evidence. These charges are not the traditional back-and-forth between two parties that alternate governance in a constitutional democracy. They are something different, something more sinister.
This dark vision drove the Democrats’ effort to remove Trump before the 2020 election. When their charges of Russia collusion failed, they quickly launched a drive to impeach Trump over Ukraine. Again, they failed on party-line votes. The Ukraine charges were so threadbare that Democrats hardly mentioned them at their convention a few months later.
President Trump has punched back ferociously, as he always does. His populist rhetoric and nationalist policies go well beyond attacks on Democrats. They attack Washington’s “permanent government,” its entrenched ecosystem of lobbyists, think tanks, bureaucrats, and media bullhorns. Voters in the District of Columbia knew Trump was attacking their company town in 2016. Almost none of them voted for Trump then, and very few will vote for him now. Trump returns the love. His opposition to the “Washington swamp” has been his driving theme for four years, and he has not eased off the gas.
These conflicts have hardened into nasty and irreconcilable differences between the two major political parties, not just in Washington but across the country. Both parties have become more ideological, with activists imposing purity tests in primary contests. Again, the mainstream media has followed suit, imposing similar tests in its newsrooms. The predictable result is less public confidence that stories are reported fairly and accurately. Trump has aggressively exploited this mistrust. He constantly damns the “fake news,” and his crowds cheer him on. Their mistrust now extends to social media companies, which were once neutral platforms.
These bitter differences, amplified by the COVID-19 pandemic, the cratered economy, and the breakdown of law and order, form the backdrop for the current dispute over the Supreme Court vacancy. Both parties believe the stakes are extremely high, and they are right.
Trump has apparently decided to nominate a new justice quickly, rather than wait until after the election. That decision, like so much of his presidency, is risky and unconventional. Why risky? Because it instantly changes the focus of the campaign, away from the economy and law and order, which had been Trump’s strongest issues. It’s also risky because it could jeopardize Senate Republicans running in purple states, especially if Trump makes a controversial nomination. That would pose real problems for Sens. Martha McSally (Arizona), Cory Gardner (Colorado), Thom Tillis (North Carolina), and Susan Collins (Maine). If Trump tries to protect them, his nominee will be less conservative than he prefers. He may face another constraint because the Republicans’ Senate majority is so thin. To confirm a nominee, he needs votes from centrists like Collins, Alaska Sen. Lisa Murkowski, and Utah Sen. Mitt Romney. Collins and Murkowski have already said they won’t go along and Romney’s mindset can be deduced by his vote to convict the president of impeachable offenses. There is a risk for Democrats, too, if they go over the top in opposing a qualified nominee and spew bilious, unsupported charges, as they did in the Kavanaugh hearings.
For Trump, the upside of moving quickly is that it forces Democrats to declare themselves and puts pressure on Joe Biden to say who he would nominate, or at least propose a list, something he has so far refused to do. Equally important, it forces Biden, vice presidential candidate Kamala Harris, and Chuck Schumer to say whether they will pack the Supreme Court with additional seats if they win the White House and Senate. Massachusetts Sen. Ed Markey, faithfully representing the Democrats’ left wing, already declared his willingness to pack the court. The Constitution does not limit the court to nine justices. Long-standing norms do. So far, Schumer has not yet declared himself, but his veiled threat that “everything is on the table” is hard to ignore. Party leaders may try to duck the issue until the election, fearing Americans don’t want to see another constitutional norm shredded. Meanwhile, Trump and the Republicans will pound them on it anyway, hoping it helps them retain the Senate.
To pack the high court, Schumer would not only need a Democratic president, he would need to eliminate the Senate filibuster. Changing that rule would be a huge step — and a very controversial one — because it would permanently change the way Congress operates. Once the filibuster is gone, it will be gone forever. The Senate would then resemble the House, where the minority is powerless and the majority can ram through any bills it chooses. Such a change would significantly alter the Founders’ framework, which establishes multiple “veto points” on government action.
Without the Senate’s ability to pump the breaks with a filibuster, a Biden White House could swiftly pass major Democratic initiatives on tax rates, immigration laws, health care, the Green New Deal, and more. They could choose to add two new, presumably reliably Democratic states: the District of Columbia and Puerto Rico, hoping to lock in their party’s control of the Senate for years to come. They could choose to pack the Supreme Court with additional justices. Their argument: The Republicans had acted illegitimately by replacing Ginsburg, so they are only offsetting that maneuver and “rebalancing” the court. (Of course, there would be nothing to prevent a future Republican president and Senate from adding still more justices.) In a country that is evenly split, the minority would have no say at all unless it controlled the presidency or one house of Congress.
Democrats would have no incentive to abolish the filibuster if Trump is reelected. But they could still force a constitutional crisis if they won the Senate and resolved to block Trump’s judicial and Cabinet nominees. As the new majority leader, Schumer and his Democratic colleagues would have to decide if they wish to go that far since it would incite a national crisis of confidence in government. The overriding question would be “Can Washington work at all?”
Whatever the election outcome, Trump’s nominee for the Supreme Court will face vitriolic hearings and an up-or-down vote this year. The anger about the Supreme Court, urban policing, COVID closures, economic revival, and more could spill into the streets if the election is close and the loser doesn’t acknowledge a fair outcome. We are sailing in very dangerous waters and have been for several years. The death of Justice Ginsburg makes those waters even more treacherous.