Race for the White House # 90

45 Days Until Election Day

Campaign 2020 has taken on a sudden and severe new dimension.

Before yesterday, I might have used this space to talk about the politics regarding a potential Covid-19 vaccine or about  how recent Middle East peace accords between Israel and other nations are being misrepresented by partisans on both sides. I could have talked about two very different "Town Hall Meetings" last week involving Donald Trump and Joe Biden, both in terms of the behavior and attitudes of the candidates and how two different television networks approached the events. I might have also mentioned the contrast behind Joe Biden holding events generally without anyone from the public and the increasing amounts of "old fashioned" rallies featuring long and seemingly tireless remarks from Trump as the virus death toll in America reached over 200,000.

That changed yesterday though very early in the evening. We all knew that judicial politics and the probability of Supreme Court nominations were important in this election, but it became an immediate concern and pretty much the first thought that crossed my mind when I heard the news that Supreme Court Justice Ruth Bader Ginsburg had passed away at age 87. I disagreed with her judicial philosophy but could not help but admire her, both for her story in how she came into her career, and in the amazing and valiant way she fought different forms of cancer for over 20 years. It has become somewhat of a "thing" on right-wing blogs to speculate about her death or to jokingly announce it. This time it was real though, and in many ways it is a shame that the end of her life itself is overlooked, by those on both the left and right, by what we all all know is coming politically. Her passing came just as Jews around America were beginning the observation of Rosh Hashanah. There is no doubt that Justice Ginsburg was a trailblazer for women and for Jewish-Americans. We can certainly also remember back four years ago when conservative Justice Antonin Scalia passed away unexpectedly. He had many differences with Ginsburg, but the two were colleagues and good friends personally. May both Justices Scalia and Ginsburg rest in peace.

Just as it was clear that Scalia would not wanted to have been replaced by Barack Obama, we know that Ginsburg remained on the Court, through health problems, because she did not want to be replaced by Trump. We heard almost immediately that she said in her final days that it was her "fervent wish" to not be replaced until a new President is installed. We can assume that means until the President is decided in the upcoming election. Let us be clear about one point. If Donald Trump is reelected in November, all of this fighting is academic. 

Supreme Court politics has been ugly and vicious for a while now and the fact is that Democrats have been mostly to blame from the unfairness and double standards leveled against Robert Bork, Clarence Thomas, Brett Kavanaugh, and others.. Now, Republicans, whom for most of this time have largely agreed to overlook differences with Democrat nominees like Ginsburg and vote to confirm them in the Senate, look poised to attempt something that would overshadow all in that regard that came before it. This all could could lead to an unprecedented political game of oneupmanship and the equivalent of "mutually assured destruction" all of which will be bad for the country. So, it has been an uneasy 24 hours, because I feel sadness for Justice Ginsburg's family and because I think we are headed towards even more division and tribalism that will last past Election Day and well into the term of whomever wins. Also, I am someone who would want to see the Court move to the right, and am disappointed that the party I was once proud to belong to is married to such an unprincipled and dangerous individual who seems highly likely to lose and take the entire "movement" down with him.

Hypocrisy is the theme of the season. The American people are cynical about politics and politicians for good reason. We saw the same kind of hypocrisy surrounding the Impeachments of Bill Clinton and Donald Trump but what will be happening now will take it to an even new level. In 2016, after the death of Scalia, some politicians flip flopped a bit, but now it's going to be a complete 180. For Senators and other politicians on both sides of the aisle, what was wrong four years ago will be right now and what was right four years ago will be wrong now and anyone who wants to complain about this shift will be told to sit down and shut up.

Not me though. I am just an "ordinary person", but I am entirely consistent on all of this. For that, I will never get any credit from partisans, but it is a matter of conscience for me. Way back in 1991, when George H.W. Bush was President, Senator Joe Biden, who played a big part in successfully defeating the nomination of Bork and having failed in stopping Thomas said that any theoretical Supreme Court vacancy which occurred in a Presidential election year should remain open until the Presidential vote was decided.

This would not come into play though until 2016, when in February, Justice Scalia died. Republicans quickly named it  the "Biden Rule" and said that Obama should not get to appoint the next Justice, but that the next President, either a Democrat or Republican should. That would wind up being Donald Trump, whom was helped in the general election by the votes of conservatives who voted for him, many solely for this reason. Democrats from Obama on down all basically screamed "bloody murder" though and claimed a seat was "stolen" when the GOP Senate majority refused to act on the nomination (whether genuine or not which is speculative and another story entirely) of Merrick Garland. Privately, Democrats admitted that if the roles were reversed at the time, they would have done exactly as Mitch McConnell and Republicans did.

I said on this blog on the day Scalia died that it would be wrong to fill his seat until we knew whom the next President would be. I was right then and am right now. Donald Trump should not get to fill the current vacancy until and unless he is reelected as President in just 45 days. Not many will join me in this consistency, even as score of Republican Senators said they would back then if the shoe was ever on the other foot. Lindsey Graham of South Carolina, now Judiciary Committee Chairman, which cause him to play a big role in this, once said "hold the tape" and "use it against me" if he went back on his word. Now, he is locked in a tight race for reelection and the tapes are out there and will be used against him. I think he might very well lose his campaign because of it, yet he is almost surely going to go along with whatever Trump wants (at least publicly before the election.)

Again, if Trump wins (which I have long ago concluded I could never want, for reasons that go well beyond being complicit because of "good judicial picks"), this is all irrelevant. He should make the pick then and the Senate, either controlled by Democrats or Republicans should make sure the person is qualified, not corrupt, and not a total extremist, and if they pass, they should be confirmed. The fact though that so many on the right are calling for a rush on this means that despite what they will say publicly, they do not believe Trump can be reelected in November and beyond that also think it is likely that the Senate will flip from Republican to Democrat control. Any Republican who is acting frantic about this and calling for rapid action is giving away their tell.

As Americans learned of Ginsburg's death, Trump was speaking at a rally in Minnesota, in which he talked about Supreme Court vacancies and many other matters. Presumably he had no idea (and had reasonably gracious remarks about her when later informed by reporters)  I am somewhat surprised the audience which had cell phones did not yell this news out to him. Had Trump announced her death, many in the audience would have cheered  and it would have been an ugly disgraceful moment. Let us also not kid ourselves about the fact that plenty of Democrat partisans were openly giddy online and otherwise when Scalia died.

Trump and McConnell now state that they are moving forward quickly on a replacement. As Biden has said he would pick an African-American woman for the Court, Trump is now confirming it will be a woman, likely announced next week. Speculation is on Judge Amy Coney Barret, a conservative favorite or Barbara Lagoa, a Latina judge from Florida, whom many think could be used to help Trump in that must-win state. In any event, Trump supporters hope that such an important matter will be enough to energize turnout for him. However, I think those who are so concerned about the Court and willing to overlook all else are already with Trump. Instead, I think the energy over this vacancy is going to benefit Biden, in regards to those who were not enthusiastic about him as well as Senate Democrat candidates in marginal states. Of course, judicial politics in this day and age is about abortion above anything else. It is also true that Republicans are preparing to call Democrat opposition to Trump's nominee sexist or even racist if the nominee is not white. That is stealing a page from the Democrats' playbook to an extent, but it is not right in any regard.

I do not think there is anyway that a Trump appointee can be confirmed by the Senate before Election Day, although many want this as fast-tracked as possible. Instead, this is likely to be a massive political brouhaha in the time after the election but before the new Congress is sworn in on January 3. We thought this time would just be about Trump screaming fraud and perhaps threatening to not leave the White House, but now it is about something else as well.

Some on the left are feeling dread that there is nothing they can do to stop Trump from putting this Justice in for life, even if he loses, and even if the Senate goes Democrat, and even if it takes the votes of several Republican Senators who look poised to lose in November and who may indeed now be even more likely to lose because of this controversy (and there is also a Democrat Senator in Alabama who may now be even more likely to lose.) I do not think this is anywhere close to a fait accompli though. Growing up, I admired Mitch McConnell  for his convictions and political skill, but now I could never look past such a naked act of hypocrisy. The fact that Republicans held the Senate in 2016 when Obama was President and also still hold the Senate now when Trump is President is completely irrelevant to the merits of the discussion. Everyone on the right said "the American people should have a role" in how the next Justice gets picked. They did then and they should now. McConnell will probably hang on to his seat in Kentucky despite the outcry, but he seems prepared to all but cut loose other vulnerable Republican Senators up this year, just to get this person on the Bench. He will state what was a major problem in February of an election year is a necessary thing in September of an election year. Complete and utter insanity.

Of course, McConnell has not committed to a time frame so this is likely a "lame duck session" matter and a race against the clock. Again, the assumption has to be that Trump loses and another assumption is that Democrats take over the Senate. That puts Republicans in a very hard position as I am convinced public opinion will be sharply against what they will be trying to do. That can have political ramifications for Senators up in 2022. There is also another interesting angle. Appointed GOP Senator Martha McSally, a 2018 election favorite in Arizona turned loser, is now trailing her Democrat opponent in a special election. She has said she supports Trump on this, but if she loses, her Democrat replacement can be sworn in as early as November 30, and the "lame duck" balance of power immediately shifts to 52-48 as the clock races to January 3.

As long as Mike Pence remains Vice President and Lap Dog, the party cannot afford to lose more than 2 other Senators. Already, Alaska's Lisa Murkowski (who wrongly refused to confirm Kavanaugh) has said "fair is fair" and that she would not go along with anything before the election or seemingly if Trump loses. Kudos to her for having character in that regard. Moderate Republican Susan Collins of Maine, who already looks to be in big trouble this year, has said she will wait until the election results are in as well. Saying otherwise right now in her state would seal her doom. I think she will keep her promise, win or lose.

That sort of means that there would just be one more Republican Senator to vote no and which would cause the nominee to be rejected on the floor 49-51. I sort of think that will happen, at the minimum. My thoughts turn to the junior Senator from Utah, the Honorable Mitt Romney, whom despite  many on the left swearing he could never do it, became early this year the first Senator to ever vote to convict a President of his own party. The pressure on Romney, a genuine conservative from a staunchly conservative state, will be immense. I think he needs to be publicly non-committal and keep his cards close to his proverbial vest at least until the election. Despite the fact he has made it clear he cannot vote for Trump, many have been confused why he has said publicly that he expects Trump to win and Republicans to hold the Senate. Might he have been giving himself cover for precisely a moment like this? If Romney is the swing vote on a SCOTUS nominee, he will have immense power. He might have to use it to cut a deal with incoming Senate Majority Leader Chuck Schumer and President-Elect Joe Biden. In doing so, he could earn the enmity and hatred of conservatives in the short-term, while at the same time perhaps saving conservatism in the long-run. What a legacy that would be.

This next speculative part is so important. Conservatives really need to be smart. Do they care about a "win" for Donald Trump, even as he may be headed out the door in political disgrace, or do they care about conservatism itself? Neil Gorsuch replacing Antonin Scalia did not change the ideological balance of the Court. Neither would a younger liberal replacing Ruth Bader Ginsburg. Other things would though, such as Biden or any Democrat replacing the current conservative Justices. My fellow right-wingers should pray that those Justices stay healthy and on the Court until a Republican can be elected President one day, if such a thing is still possible.

Partisans on the right (and I realize they will claim this publicly as a reason for Americans to reelect Trump) should state that the winner of the election will make this selection. The alternative response from Democrats could be disproportionate, bad for America, and devastating to conservatives for generations...

They might "pack the Court."  We have already seen all sorts of games played with the filibuster in the Senate with more possible. If Republicans play dirty, Democrats are going to play even dirtier. They will probably be able to get away with it politically to because the American people will either be tired of all this fighting or just of the mindset that anything is now fair game. All it would take is a Democrat President and a Democrat Senate. If a conservative Justice joins the Court, they will simply increase the number of Justices from 9 to 11 or 13 or..... In theory Joe Biden would name them all and a Democrat Senate would confirm them all and this will have all backfired on conservatives spectacularly. 

Some on the right scoff at this and say that Democrats will do it anyway and thus it is best to just put the fifth or sixth (depending on what they think about Chief Justice John Roberts) on the SCOTUS. I do not think they can get away with doing it unless Republicans, fresh off a rejection from the voters, go nuclear first. The emphasis should be on cutting a deal and announcing it publicly .The winner of the 2020 election replaces Ginsburg and there is no effort made to expand the Court. Maybe Democrats do not even want such a deal. Maybe despite all their cries to the contrary, they will actually want Trump to get away with this so they can "pack the Court." In any event, it would be bad for our institutional democracy.

The people will decide in 45 days and eventually we will know (legitimately via the Electoral College) what their decision and it is completely fair for people to consider in their votes, for both President and Senate, whom they want to pick judges. Republicans need to be careful though. There is always another election around the corner. Do not burn down the entire house and in regards to "court packing" do not be complicit in your own destruction by basically handing your opponents the tools to do you in.

As for the rest, I do not know if we will ever see a day when there is consistency in politics beyond a few brave souls who stand for principles larger than their own self-preservation or their next election. It is why I have soured on politics so much in the past few years. I just know that what was right ethically and morally thirty years ago, was still right four years ago, and is still right today, and will be right for however long as America is able to exist "of the people, by the people, and for the people."