Ruth Bader Ginsburg was an American icon. She died Friday at the age of 87. As a Supreme Court justice she stood up against all forms of discrimination. She led the fight for women’s rights and human rights. Her support for Roe v Wade was critical over the years even though Republican state legislatures in red states across the country eventually figured out how to restrict and limit access to the right to abortion and reproductive health care even with Roe as accepted law.
With RBG gone, Roe is on the chopping block if and when a right-wing justice gets in and moves the Court further right. The conservatives will have 6 votes instead of 5 and will be free to enact the will of the right-wing. Chief Justice Roberts is currently the swing vote but there would likely be a new center of gravity further to the right.
Trump has already issued his list of choices for the Supreme Court and they include Tom Cotton and Ted Cruz as well as Amy Coney Barrett who has been on the Seventh Circuit Court of Appeals is a Catholic who has numerous children and is fundamentally opposed to reproductive choice. This woman would be the most likely prospect so that Trump could look good to women for the upcoming election. The ACA (Obamacare), rights for the LGBTQ community will be immediately at risk along with many other rights including immigrant rights and DACA.
So, what will likely happen next?
Mitch McConnell and Trump will race to get Barrett on the Court. Trump thinks this will help get him get re-elected. Evangelicals who have held their collective noses and stayed with him in order to get a bunch of young right wing judges onboarded in the federal system will see him as their hero. A third Supreme Court justice would be the cherry on top of the Federalist Society sundae they’ve been building for the past 4 years.
Yeah, but this is incredibly hypocritical.
Why? Because of what went down with Merrick Garland, President Obama’s pick for the Supreme Court 10 months before the 2016 election. Mitch McConnell as Senate leader did not even give Merrick Garland a hearing. Nothing. McConnell rejected even the idea of an appointment of a new Supreme Court justice by the sitting president long before the next election arguing that it was too close to the election. Which was bullshit even at that time. (Many former presidents have appointed judges to the Supreme Court in an election year including Ronald Reagan.) McConnell claimed that the American people should decide on their president in an election year, and that that president should then get to make the next appointment to the Court. Republicans across the board echoed Mitch’s bullshit argument over and over. The truth was they wanted to keep a more moderate justice off the Court and keep Obama from getting his pick.
Is Mitch sticking to his rule now? Of course not. The Republicans have lost all semblance of ethics, civility and fair play. We are only about 40 days away from an election Trump would lose to Joe Biden if the election were held today based on polling in the battleground states. But McConnell and Trump are rushing to get the a new justice appointed as fast as possible. Mitch has vowed that Trump’s pick to replace Ginsburg “will get a vote.”
We will witness political jiu jitsu as Republicans who vowed to uphold the so-called “McConnell Rule” twist themselves into pretzels to explain how they are being fair by appointing a Supreme Court justice 40 days before an election for president. This promises to be one of the most disgustingly hypocritical things ever to happen in American politics.
If the Republicans pull this stunt, and I think they will, I believe the American people will make them pay for it.
The Court Will Be Out of Step with Americans for Decades
Trump was not elected by a majority of Americans. He lost the popular vote by close to 3 million. Since being elected, Trump has catered solely to his base which consists of only about 35% to 40% of the electorate. Many of the right-wing policies Trump generates and pushes are out of step with the wishes of the majority of the American people.
A majority of Americans currently support Roe v Wade, want affordable health care and protection from loss of coverage if they have pre-existing conditions. A majority of Americans believe that who you love is your own business; they support LGBTQ rights. They also support human rights, are not opposed to immigration and are appalled by the child separation policy at the Mexican border.
Trump’s legacy, even if he loses this election, will be a federal judiciary seriously out of step with the beliefs of the American people. Our country will be saddled for decades with a judiciary that is far more regressive than our country wants and needs. This is especially so since the next generation in this country is even more progressive than our current electorate.
Next Gen favors the Green New Deal to combat climate change, wants reproductive freedom, human rights and LGBTQ rights. They do not fear immigration or globalization. They want gun control. There will be a serious mismatch between the federal courts (that will rule too far to the right) compared to the beliefs of the population. And as Trump supporters die off (they are, after all, mostly low education men and women who are senior citizens in red states plus the greedy 1%), the mismatch will become even more pronounced and profound.
Voters who want a progressive country can clearly see what is coming. If the election of 2020 was charged before, this development will supercharge it. Every single Senate seat in jeopardy will turn into a do or die race. Most of the Senate seats in jeopardy are held by Republicans. There are ten GOP seats being defended by incumbents who could lose if the progressive electorate gets even more activated than it already is and turns out in higher numbers. And right now that part of the electorate is very agitated and eager to vote Trump out. After RBG died the Dems were flooded with money. 90 million dollars since 8 pm Friday when Ginsburg’s death was announced! THAT is agitation on steroids!
The stakes are high for at risk Republicans in purple states that are shading more blue these days thanks, at least in part, to Trump’s “nearly criminal” mismanagement of the pandemic. We have now hit the horrible and shameful milestone of 200,000 dead Americans.
Republicans currently have a 53 to 47 edge over Dems in the Senate. They can confirm a new justice with only 50 votes. But the counterweight is that Trump is unpopular in many so-called purple states. What that means is that those Republican Senators who are already trying to distance themselves from Trump are going to be running for cover and ducking reporters’ incoming questions on the topic of a Ginsburg replacement by Trump because many of their constituents will be furious about this hypocrisy.
Here are the “at risk” or close Senate races.
Susan Collins of Maine would be more likely to lose her battle against Sara Gideon if she complies with Mitch McConnell’s hypocrisy. In Maine the electorate is already angry at Collins for her Kavanaugh vote. 55% of that state’s electorate disapproved of her vote in favor of Kavanaugh. Maine voters trust Biden to make the decision about a new justice 59% to 37%. Susan Gideon currently leads Collins in the polls 49% to 44% before the news of Ginsburg’s death. This is why Collins has already said she opposes an appointment to the Supreme Court this close to the election or in the lame duck session.
FYI Lisa Murkowski, one of the few moderate Republican Senators left, has also come out against filling the seat before the election.
Which other Senate hopefuls could gain ground if more riled up progressives get to the polls to vote for pro-choice, pro-human rights candidates in close races?
Jaime Harrison (D) might gain a greater advantage over Lindsey Graham in South Carolina.
Mark Kelly (D) could increase his advantage over Martha McSally in Arizona. Arizona is trending more blue. McSally is onboard with Trump.
Cal Cunningham (D) might improve his advantage over Thom Tillis in North Carolina. Tillis has already sided with Trump on this btw.
John Hickenlooper (D) could beat Cory Gardner in Colorado. Colorado is becoming more liberal.
Barbara Bollier (R turned D) in Kansas would gain a greater lead against Roger Marshall. (Not an incumbent).
Theresa Greenfield (D) could gain against Jodi Ernst in Iowa. Ernst is on board with Trump.
In Montana the former Governor Steve Bullock (D), might be more likely to win a Senate seat.
In Alaska, Al Gross (I) could benefit. He is prochoice and his views are closer to the Dems and the Dems are funding him.
In Alabama Democrat, Doug Jones might be able to hold onto his imperiled Senate seat.
If you are worried about what is happening, GIVE TO THE DEMS IN THESE SENATE RACES! It is money well spent!! Go to their websites and click on the donor button. Give at any level you can.
A Backlash Would Be Set in Motion
The rush to replace RBG with a right wing ideologue will create a huge backlash. The Dems should have an easier path forward to keeping the House, taking the Senate majority and landing the presidency. If the Dems gain unitary government, then I think the Dems will feel it is only fair game to nullify the dirty tricks of the Republicans by making some big changes to government.
Neal Katyal, former Acting Solicitor General during the Obama administration, has said that Dems would be perfectly within their rights to make some important changes after what they have had to put up with from the Republicans. (Eric Holder agrees with him as do many other leading Democrats.)
1) The Dems could change the composition of the Supreme Court from 9 to 11 (or more) justices which should be do-able with a simple majority vote of the Senate. That way the 2 unfairly appointed Republican justices would be counterbalanced by two additional more liberal justices. The Constitution does not require any specific number of justices.
2) The Dems could get rid of the Senate filibuster. The filibuster is the rule that requires a 2/3 vote to get legislation passed in the Senate. The filibuster rule has already been abolished when it comes to the appointment of judges. That’s how the Republicans have been able to get all these right-wing federal judges appointed in the last 3 years with Trump as president. All they needed was 50 votes, which they had.
The filibuster is also not written into the Constitution. If the Senate filibuster were totally abolished, the Dems could get sweeping legislation passed to help the American people get what they really want- affordable health care, gun control, reproductive rights, climate change legislation and DACA, for example. That would be only fair after this administration’s dirty tricks, corruption and failure to address the needs of the majority wishes of the American people.
It would also be a move towards more representative government since every state, even small states and low population states get 2 senators while huge states like California with dense population centers get the same 2 senators. That has meant that red states have an outsized influence in the Senate. It matters more now because our country is so deeply divided.
Abolishing the filibuster was also suggested by Barack Obama recently and is going to look mighty appealing with a Senate filled with Republicans beholden to the far-right Trumpian base who are not interested in working things out with the Dems and Dems who are trying to help the American people crawl out from under a mismanaged pandemic, the resulting economic disaster, climate change, address social injustice and so much more.
There is a very small chance that McConnell will decide not to pull this stunt if he thinks it will cause him to lose his majority in the Senate. He cares more about his power than anything else. But I think he is going to be pushed hard by Trump to make the appointment and will have trouble resisting even if he is fearful about the backlash.
There is also a chance that McConnell will not have the 50 votes he needs. If Americans rise up and flood the at risk Republican Senators with calls (and even calls to Democratic Senators will help make the case against an appointment now) that could influence what happens next. (However, the lame duck session might turn out to be the time when McConnell would jam through the appointment since the Republicans who lost their elections would be freer to vote whatever way they chose without concern about their constituents.)
Call to Action
If you are mad about the Republicans’ dirty tricks, don’t get mad, get even by
- Planning to vote EARLY AND IN PERSON if you can. Wear a mask and bring a lunch. That way your vote is more likely to count. Early voting has already started in many states.
- Calling your Senators. Talk to their staff. Give them an earful. Tell them to resist this farce. Get all your friends to call too.
- Supporting Biden/Harris and the Democratic Senate hopefuls I listed above. Just Google their names and go to their campaign websites, find the donation button, click, and give at whatever level you can. It’s easy. And it feels good to give to a worthwhile cause in Ruth’s memory.