The below clip from the movie “Aliens” sums up my view of the current SCOTUS situation.
I could probably finish this blog post by just sharing this clip because there really isn’t much Democrats can do to prevent the Republicans from filling RBG’s Supreme Court seat.
The Left lacks the one thing in this battle that matters the most in politics: leverage. Right now, there are three potential scenarios in play, and there really isn’t a great way to fight back in any one of them.
- Republicans fill the seat before Election Day.
This is the least likely scenario to happen as keeping the seat open gives moderate conservatives on the fence about voting for Trump a reason to vote for him (a la 2016).
- Republicans fill the seat after Election Day, in the lame duck period before a new Congress is sworn in.
This is the most likely scenario to happen because the GOP will still maintain a 53-47 majority in the Senate during the lame duck session, and will not have to face voters’ wrath until 2022 at least. As we’ve seen in the Trump era, the news cycle moves fast, and I’m sure there will be some who will have forgotten all about this debacle by then.
- Democrats, after a conservative justice is appointed, pass legislation expanding the size of SCOTUS (assuming they win the presidency and the Senate in November).
This seems to be the most popular reaction among liberals online. They argue that the only way to correct the imbalances of having so many judges to the court appointed by a man who lost the popular vote in 2016 is to add more liberal judges to the court.
This tactic, however, runs into headwinds for a number of reasons. Joe Biden, at the moment, has not endorsed this idea (yet). Second, there are moderate Democrats in the Senate like Joe Manchin and Kyrsten Sinema who probably will not go along with this idea in a million years. Third, even if the Democrats got the votes and expanded the court, the Right would just sue and toss it to SCOTUS. At this point, there would be a 6-3 conservative supermajority on the court and they would strike it down.
So, there really aren’t a lot of great options in this situation. It’s time to start planning for the worst & assuming we do get a 6-3 conservative supermajority in the near future.
This means there will be a very different United States of America. Probably the biggest implication is that Roe v. Wade will be gone. That doesn’t mean abortion everywhere will be illegal, but it probably will only be legal in the blue states. This will be a nightmare for poor & disadvantaged women, especially those who live in red states, who won’t have enough financial resources to travel potentially long distances to obtain one (and this is already an issue, even with Roe v. Wade still on the books).
Voting rights will also be on the chopping block. The previous 5-4 conservative SCOTUS (with Chief Justice John Roberts as the ‘swing’ vote) has been abhorrent on the issue, perhaps not a surprise since opposing them is Roberts’ “lifelong crusade.” This will further keep the Republican Party in power, not based on the merit of their ideas, but based on their ability to disenfranchise voters.
Finally, again assuming Biden wins and the Democrats have complete control of the Senate next year, a 6-3 conservative SCOTUS will block anything & everything they want to do. Biden could probably sign a bill into law renaming a Post Office and SCOTUS would rule that it’s unconstitutional.
So all in all, this vacancy is a near impossible spot to be in politically. My best best would be for the Democrats to act like a true opposition party (instead of voting to confirm many of Trump’s other judicial nominees) and gum up the legislative works as much as possible. They could start by impeaching Attorney General William Barr & other officials in Trump’s Cabinet. This is a good tactic because it would push back a vote on a SCOTUS nominee in the Senate (buying valuable political time).
There’s also the (very) long-shot option of defeating the nomination when it comes to a vote in the Senate. Former astronaut & Democrat Mark Kelly is running for the Senate in Arizona in a special election to fill the rest of the late Sen. John McCain’s six-year term. Since it’s a special election, he could theoretically be seated as early as November if he wins, which would whittle the number of Republicans in the Senate down to 52. While a decrease of one may not sound like a lot, it will make Mitch McConnell’s job much harder to confirm a nominee.
And, as we saw with the late Sen. McCain, just one senator can be enough to make a difference when it comes to a vote.
This vacancy will also pour lighter fluid onto an election that was already in flames, amid an ongoing pandemic. I’m going to strive to take more frequent news breaks so I am not obsessed with the latest political developments – it may be my best shot at sanity before November 3.
Countdown to Election Day: 44
This Week’s WTF Moment in Congress
Not from this week, but here’s a supercut of Republican senators from 2016 talking about why they were blocking Merrick Garland’s nomination back then. Compare this with their rhetoric now…
Ruth Bader Ginsburg’s Advice for Living (The New York Times)