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In moving to replace Ruth Bader Ginsburg, what Trump and McConnell are calling for is removing a fundamental question of policy from the realm of democratic choice.
As far as Donald Trump is concerned, the sooner the confirmation of his upcoming Supreme Court nominee happens, the better. In his view, putting one more Republican on the Court before Election Day means that, should the election’s outcome be thrown to the Court, he has a better chance of prevailing. In reality, Chief Justice John Roberts has spent his entire professional life in dedication to limiting the right to vote, and a 5-3 Court with him in the majority would reliably deliver a Trump victory. But Trump usually gets the better of reality.
And since Trump’s re-election is really all Trump cares about, I also think his likely nominee will be federal appellate court Judge Barbara Lagoa, a Cuban American from Florida. No other appointee on the short list actually holds some potential, if only theoretical, of flipping a state in Trump’s direction. The evangelicals who’ve rallied behind Amy Coney Barrett as their sister in religious fruitcakery will vote for Trump come what may, but Trump could be swayed by the idea that Lagoa might just bring the nation’s third-largest state into his column. (I don’t actually believe Florida’s vote will turn on this pick, but I do believe that Trump, who’s growing justifiably nervous these days, may believe it.)
As far as Mitch McConnell is concerned, it’s not clear yet when he thinks the best time to hold a confirmation vote will be. Clearly, he’s given both Maine’s Susan Collins and Alaska’s Lisa Murkowski a pass so they can oppose voting for the nominee, but he can only afford to issue one more such pass and still get to the magic number of 51, once the vote of Vice President Mike Pence is added to the total.
Colorado’s Cory Gardner has evidently concluded there’s no way he can survive November’s election, so there’s no point in him joining Collins in an effort to win over swing voters. Thus freed from the unbearable pressure of having to act responsibly, Gardner announced yesterday that he’ll vote to confirm whomever Trump nominates. That leaves Mitt Romney as the only remaining Republican question mark, and even if Romney opts to let the presidential-election winner determine who will sit on the Court, McConnell still should have his 51 votes.
The Democrats have three lines of attack in response to Trump and McConnell’s court-packing ploy, all three of which, I think, should help them in November’s election. The first is the danger that one more Trump appointee would pose to the Affordable Care Act, which will come before the Court on November 10, just one week after Election Day, in a case filed by various Republican state attorneys general and backed with an amicus filing from Trump’s own Justice Department. It was only John Roberts’s decision to side with the Court’s four liberals the last time the ACA was challenged that kept the law on the books. Even if Roberts were to side with the Court’s now just three liberals this November, the new justice could join with the four other right-wingers to strike it down. The ACA currently enables 20 million Americans to have otherwise unaffordable coverage, and it also requires insurance companies to offer affordable insurance to the roughly 100 million Americans with pre-existing conditions, and, if you hadn’t heard, there’s a pandemic afoot in the land.
Biden will surely raise this point early and often in next week’s debate and for the duration of his campaign. Democrats on the Senate Judiciary Committee must raise it, too, during the confirmation hearings. While nominees don’t comment on pending cases (or, with very rare exceptions, past cases either), there’s no reason they can’t be asked how many Americans would lose their insurance, or how many with pre-existing conditions be subject to major insurance price hikes, if there were no ACA.
The second line of attack is the threat a sixth conservative on the Court would pose to Roe v. Wade, to Obergefell v. Hodges (which legalized gay marriage), and to other widely supported landmarks of tolerance, autonomy, and equal rights. Democrats and supporters of abortion rights have raised the specter of the Court’s overturning Roe for decades, yet the number of anti-choice voters mobilized by that issue has always exceeded the number of pro-choice voters. Justice Ginsburg’s death and the Republican rush to lock in a successor before an impending election, however, has dramatically raised the threats that right-wing religious conservatism pose to these basic rights, from the level of the abstract to that of the loomingly real. Among young Americans in particular, who often don’t vote in large numbers, support for reproductive freedom and gay rights is overwhelming, and it shouldn’t be hard to hammer home the danger that Trump’s appointee will present to the young and their values.
In recent decades, the Court has mattered more to right-wing voters than to their left-wing counterparts, but I wouldn’t count on that this year.
The third line of attack that Democrats can wage involves the very process that the Republicans have embarked upon, which is one of packing the Court just before voters can have their say in the matter. What Trump and McConnell are calling for is removing a fundamental question of policy from the realm of democratic choice; it is a resounding “fuck you” to the vox populi. That may not bother the 40 percent of Americans who are Trumpians come what may, but it should bother the hell out of the other 60 percent, whether they’ve already decided to be Biden backers, or comprise part of the small pool of remaining swing voters. On this momentous issue, the Republicans are telling those swing voters that their votes don’t matter.
Every Democratic official with the power of speech has already condemned the Republicans’ rush to remove the right to have a say on the Court’s direction from the electorate. Come next week’s debate, if not sooner, Biden will also be asked if he will “pack the Court” if the GOP’s ploy succeeds and if he wins the presidency and the Democrats take the Senate. During the primary debates, Biden came out against doing that, but he might reflect upon what Lincoln said in his first message to Congress after the Civil War had begun: “The dogmas of the quiet past are inadequate to the stormy present … As our case is new, so we must think anew and act anew.” (Lincoln, it should be noted, added a tenth justice in 1863.)
So asked, as he surely will be, if he now favors packing the Court, Biden should respond, first, by saying it’s the Republicans who are packing the Court right now, lest the electorate choose a different direction in just a few weeks. And if they do pack the Court, they’d compel him to rethink his position. They just might compel him, in accord with public sentiment, to support balancing the Court so it’s more reflective of the deep values of the American people rather than the panicked preferences of politicians fearing defeat.
The events of the past few days—the death of a national liberal icon and the Republicans’ unseemly rush to anoint a far-right successor before voters weigh in on their own preferences—should actually help Democrats in the upcoming election. In recent decades, the Court has mattered more to right-wing voters than to their left-wing counterparts, but I wouldn’t count on that this year. For this sea change in our politics, Republican belligerence—fueled by their fear that they’re losing control of the country and its future—is to be blamed, or credited, or both.
