The Senate Needs Statesmen and Stateswomen Right Now
Is there any way to avoid a political civil war in the wake of Judge Ginsburg's death?
Today, what everyone knew was possible, but which we’d discounted because only so much can happen in a year (right? wrong.), happened: Justice Ruth Bader Ginsburg died. Ginsburg, one of the most influential figures in the American legal landscape over the last fifty years, will influence our politics and the future of the court in her death as she did with her life. There are others who will recount the details of that legacy, here’s one early obituary from The New York Times, but I am not equipped to do that here and so I will get straight to the point of this initial reaction to the news.
What I’m better equipped to do is lay out what a dumpster fire this is for our politics, and how this interacts with the presidential election.
There s been a range of ideas about what this means and what to do over the last several hours—some only consider one party’s interest and perspective, some are just horribly naive, others are morally and ethically consistent, but are unfortunately unlikely to carry much sway.
As I was initially writing this post, I argued that Trump would obviously put a nominee forward at some point in the remaining months of his presidency, and I argued that Mitch McConnell would support bringing the nominee up for a vote. I don’t need to make that case anymore…that is exactly what has happened. So that work of explaining why that would happen was a waste, but at least now I can get straight to the various scenarios for moving forward and explain why a bipartisan coalition of Senators limiting both Trump and Biden to an agreed set of nominees is essential.
First, here’s a brief rundown of some news and statements from key players to give you some context:
Republicans Stand for Principle
One way this could go is for four Republican Senators to commit that under no circumstances would they vote for a Trump nominee for Ginsburg’s seat at any time. Senator Lisa Murkowski, for instance, has only explicitly ruled out the timeline which is least likely to happen: that with a third of the Senate running for re-election, a nominee would be named, hold meetings, go through the judiciary committee and receive a full vote in the Senate before the election. The fact that the statement is tailored to only rule out this unlikely scenario leads me to believe it’s more about putting explicitly on the table that Murkowski might vote for a Trump nominee after the election.
Senator Susan Collins said last month that she would not seat a Supreme Court justice in October “or in the lame duck if there’s a change in presidents.”
A couple other senators have comments that suggest they might be opposed as well (Graham, Grassley).
If we can get four (though are Democrats sure Manchin is a solid no?) Republican Senators on the record with a rock-solid commitment not to vote for a Trump nominee, then this might be the best route for the country. However, I really have doubts that a) four Republican Senators will even allow themselves to be perceived as making such a commitment, or if they did, that b) a “rock-solid commitment” would hold up after the election, or if, say, Trump told Lisa Murkowski or Lindsay Graham that he’d nominate someone of their choosing. Heck, Trump could nominate Lindsay Graham if he lost his re-election.
But let’s just say this is how it goes. That, really out of nowhere for anyone not named Mitt Romney, four Republicans stick to their guns in a way that defies a central political priority of President Trump, and do not allow Trump to get a third Supreme Court justice confirmed to the bench. These Republicans would be doing so on the basis that while they support the kind of judge Trump would nominate, they disagree with the process it would require to advance their ideological goals. Now, to be clear, those are exactly the kinds of decisions I think our politics needs. I would applaud it. I would applaud those senators.
But I lack confidence that such statesmanship can be expected.
The good news here is that my confidence, or anyone else’s, doesn’t really matter all that much. Within the next 12-24 hours, we should be able to get all of the key Republican senators on the record, and if there are four who make a commitment that seems firm enough that Trump does not bother making a nomination or McConnell makes clear he won’t begin the process because he knows how it will end—great! Crisis averted!
One crisis, at least. Because if Republican Senators stand in Trump’s way, Trump is unlikely to accept such a defeat quietly. Instead, this scenario is how Trump destroys the Republican Party. He will go scorched earth, questioning Republican electeds’ commitment to Republican voters’ priorities. Senators Collins and Graham are up for re-election. A typical president might hold their tongue and decide that it’s best not to undermine their election campaigns because it’s better to have them in the Senate than not. That’s not Donald Trump though. Collins and Graham will be targets for his wrath. Republican voters across the board will go into the election in a malaise, setting the party up for potentially catastrophic defeats.
This is essentially the dynamic that has held Republicans in line throughout the Trump presidency: they know he doesn’t actually care about the Republican Party or about the ideological commitments of the Party. They know he won’t make a decision for the greater good of the Party, not to mention the country. It makes it difficult to sacrifice your policy goals when you know it won’t advance your political goals or even, really, the defense of our political institutions…once Trump got power, it was always a threat that he’d use it to burn anyone or anything that got in his way.
Perhaps Republicans decide it’s too unlikely Trump will win in November, and decide to take the short-term hit along with whatever vitriol Trump spends at them. But, again…where would this courage come from? How would this thinking be consistent with what we’ve seen over the last four years? Is an open Supreme Court seat really what will make the fever break?
The most likely scenario
The most likely scenario is that Trump names a nominee he believes will help him win re-election. Amy Coney Barrett is the choice that comes top-of-mind, but think about the Republican convention’s employment of identity politics and feel-good stories, and you’ll get an idea of some other directions he could go. The final Senate vote would likely not happen until after the election, and so Trump and the Republicans would be hoping they can ride this to at least stem their losses in the Senate. Meanwhile, Democrats would hope this is at least neutral for them politically, and that they come out on the other side of November 3 with The White House and the Senate. With Trump and McConnell disempowered, they would warn Republicans of what would come their way if they confirmed the nominee during the lame duck:
And pray that is enough.
Last thing I’ll say under this scenario is that I think it moves the presidential campaign to terrain that offers temptations to the Biden campaign that they must resist. He can’t pivot in these last seven weeks from a broadly-appealing candidate who is on a moral mission to restore the soul of the nation, to an ideological crusader protecting the courts from a conservative supermajority that will…*laundry list of progressive policy items that would be set back by a conservative court. If the Biden campaign sees Trump’s base newly energized, they need to resist the urge to move too aggressively partisan and negative. Instead, he needs to be saying things like “I’ve said from the beginning that I will not be a president just for Democrats, but for all Americans. This president keeps making decisions that divide Americans for his own agenda, regardless of the costs. I will make decisions that unite America, including nominating a justice to the Supreme Court we can all be proud of if I am given the opportunity.”
If he all of a sudden runs as an ideological representative, the Last Hope, he’ll undercut his broad appeal without having the time to make up for it (which may not be possible anyways) by boosting progressive turnout.
This whole situation is fraught for Biden, but it’s not a dire threat. They just need to take it seriously, navigate it wisely and consistent with the campaign up to this point, and they’ll be fine.
Finally, someone needs to remind social conservatives that Trump’s two picks to the Supreme Court have found ways to disappoint them already? Why think the third time’s a charm?
What’s best for the nation?
Now to my proposal.
First, I just want to say that there are no great pathways forward here, because this is just a bad situation. Comically, tragically bad as a political situation.
Second, I don’t think this is, first and foremost, a moral decision, in a vacuum. By this I mean to say that this situation is such a historical anomaly, and such a procedural question, that I tend to think many people’s opinions would change depending on how their interests and views would be affected. I tend to think that President Obama was right to nominate Merrick Garland, Senator McConnell was wrong not to allow a vote, and that Justice Ginsburg’s passing is just too close to the election for President Trump to nominate a justice as if it were just any other opening. However, I couldn’t give you a precise number of days at which I think it becomes too soon to an election for the president to nominate someone. And, again, putting aside Senator McConnell’s arguments around Garland, in a vacuum I think it’s legitimate to argue that it’s the current president’s duty to nominate a new justice when a seat opens up. I think that’s generally right.
The complicating factor here of course is that there is a history. Senator McConnell argued against Obama making an appointment to the Supreme Court in the Spring before his election. Now McConnell wants Trump to name a nominee in the Fall of his election. McConnell argues that it’s different because his party controls both The White House and the Senate, but this strains credulity.
In an ideal world, perhaps, Republicans would simply say that to initiate a confirmation process less than seven weeks before the people express their will in an election is just not helpful. And I know this is the least burdensome expectation Democrats can have—especially in light of what McConnell did to Garland and the way Democrats feel wronged, with good reason.
But I must admit that I can see how it would be difficult for Republicans to justify telling their voters that for basically procedural and institutional reasons, they will not vote to confirm a judge they support when they have the power to do so, and will instead give the responsibility of nominating Ginsburg’s replacement to Joe Biden who would presumably nominate someone they would not enthusiastically support. A nominee who, if Democrats win the Senate in November, could be confirmed in 2021 with no Republican support. There’s an ethical case that this should be their approach, particularly if they were on the record that it was wrong for Obama to nominate Garland, and right for McConnell to not bring Garland up for a vote. But I get that it’s tough to tear up a check that is written out to you, rightly or wrongly, and at the same time send a blank check to the political opposition.
So the only way I see out of this right now, just hours after the news broke (maybe I’ll come up with a more brilliant idea tomorrow!), is for a coalition of four Republican Senators and four Democratic Senators to come to an agreement on a list of potential nominees to the Supreme Court that they agree on and commit to not vote for anyone who is not on the list during a Trump Administration or a Biden Administration.
The four Republican Senators would agree to this because they think it’s best for the nation that Trump be forced to nominate someone who is widely-acceptable or not nominate anyone at all. If they expect Trump to lose in November, they would want to have some kind of comfort level with who Biden could nominate.
The four Democratic Senators would agree to this because they think it’s best for the nation that Trump not be allowed to get a justice confirmed who has no Democratic support on his way out of Office, and the elimination of that risk is worth the cost of limiting Joe Biden, should he be elected.
This deal would have to come together in the next couple of days, before Trump can announce a nominee of his own. The concept is a long-shot, particularly in such a polarized environment. It goes beyond the Senate’s “advise and consent” role, but the circumstances are extraordinary enough to justify a strong hand from the Senate.
That’s what I have for now. I’m sure I could be argued out of thinking this is a reasonable, good idea. We’ll re-evaluate in the coming days, but this is the best option I see now as I strain to see a path forward for this nation and our politics.
-Michael
Discouraged and disheartened right now. Even more so because I heard the news last night while I was with my conservative Evangelical family, who were thrilled that Trump would nominate someone in the next few days. It seems so many have no idea the damage that would do. Or they just don’t care, which is far worse.
I’m so tired of people saying “you don’t have to like him but he’s done some good things.” He sows division wherever he goes and it is evil.