Dear Senate Republicans:
A true American icon has died.
Ruth Bader Ginsberg was a passionate and brilliant defender of our Constitution. As only the second woman to ever serve as a Supreme Court justice, she leaves behind a 27-year record of both majority opinions and powerful dissents that will be quoted as long as our democracy lives.
I know RBG wasn’t your favorite jurist. But she was sincere. And she was funny. And she was a good person. She was great friends with Antonin Scalia – who probably was your favorite jurist – and they highly respected one another. That should mean something to you.
While it’s sad that discussions have turned away so quickly from her amazing life and toward the nasty process of replacing her on the Court, it’s not unexpected. Since we’re here, though, I’ll take a moment to discuss the politics.
I know that McConnell was crystal clear when he said immediately after Scalia’s death ten months before the 2016 presidential election: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”
I am also quite aware that McConnell has no problem at all flushing any pretense of principle down the drain in order to replace Ginsburg less than two months before the 2020 presidential election. I just wish he’d be honest about a purely political power play. His logical gymnastics to justify the switch are embarrassing.
I’ve already seen a ton of opinion pieces addressing all sorts of Senate process questions – how long does it take to get a nomination through the Senate, do you have time to do it before the election, can you do it after the election in a lame-duck session, would enough of you be willing to rush a vote, does the math change if Kelly beats McSally and he takes the Arizona Senate seat immediately since that’s a special election, etc.
I guess this inside baseball is moderately interesting, but I fully understand the bottom line: At least 50 of you will fall in line behind Trump and McConnell, with a Pence tie-breaker if necessary, to do whatever you damn well want to do on whatever timeline you so choose. You could technically seat Rudy Giuliani on the Supreme Court by the end of today if you wanted to. You could seat a new justice an hour before a Biden inauguration. And you would. I know you would. There’s nothing that can stop you.
In 2016, your decision to not even give Merrick Garland a hearing put the selection of a replacement for a very conservative Supreme Court justice firmly in the hands of the next President. I still don’t understand why you didn’t give Garland a hearing and then just voted against him. It would have produced exactly the same result without the political baggage. In any case, however, the open seat was undoubtedly a factor in many voters’ choice of Trump over Clinton. It’s even reasonable to contend that this was a deciding factor since a Clinton-appointed jurist would have surely swung the balance of the Supreme Court.
However, 2020 is not 2016 and this open seat is not the 2020 campaign “game changer” that some of you are calling it. Or at least it’s not the game changer that you think it is.
You want to fill Ginsberg’s seat before the election? Go ahead. Make my day. You’ll guarantee a 2020 blow-out loss for your party. Replace the premier liberal on the Court with a conservative and both Democrats and independents will be galvanized to an extent that you can’t even imagine. On the other hand, numerous Republicans will become complacent about voting for your party since they will have already won their solid conservative Supreme Court majority.
You want to fill the seat after the election in a lame-duck session if you lose either the White House or the Senate? Dandy. You’ll put a nail in your party’s coffin for decades. 2022 will be all about that vote.
Fill the seat before January and the voices of reason in the Democratic party will be silenced and the Senate filibuster will be tanked as soon as they have control. You can all just go home since your votes won’t matter at all on anything. Oh, and by the way, your Supreme Court majority will be short-lived when Democrats simply expand the Court. Most Democrats don’t support an expansion but, if you force the issue, almost all of them will.
I rather hate giving you political advice, but you really have only one decent option.
You can indeed make the election about the Supreme Court – but only if there’s still an open seat. Sure, only an idiot would have assumed that RBG’s seat would not have been vacated during the next President’s term anyway. But let’s be candid here: You have a lot of idiots in your party. Making the election about filling an actual open seat probably helps you more than it helps Democrats. It will bring out more voters in both parties – but my guess is that there are more Republican votes to be had in this scenario.
So here’s the possible outcomes of delaying a confirmation until January:
- It could help you win both the Presidency and the Senate – in which case you could then seat whomever you want. You win.
- It could help you win either the Presidency or the Senate – in which case you could at least guarantee a moderate justice to replace a liberal. You still win.
- It could have no impact and you could still lose both the Presidency and the Senate. Democrats would get to name a liberal replacement for a liberal and the Supreme Court balance would be unchanged. However, your 2022 campaign issue to take back the Senate would be delivered to you with a cherry on top. You eventually win.
You’re welcome.
Of course, I fully expect all of you to tell me what I can do with my advice. You want to take your opponent’s Queen even if it means you’ll lose the game. Cool. I’ll get back to mourning and save my “I told you so” for another day.