By kos | 19 September 2020
To Republicans, the rush to replace Supreme Court Justice Ruth Bader Ginsburg is a simple proposition: If they don’t replace her right now with a conservative jurist, they’ll lose their chance to replace her.
In other words, they think they’re going to lose in November.
Their behavior makes this obvious. Consider, Donald Trump used the prospect of replacing an empty Supreme Court seat in 2016 as a way to rally a skeptical Christian conservative base. It was the smart electoral play. If Trump and his party were confident of victory they would:
1) Invoke the McConnell Rule, which claims that a Supreme Court seat shouldn’t be filled in the last year of a president’s term.
2) Use that empty seat as a way to deflect from Trump and the GOP’s pandemic response disaster, which has now claimed over 200,000 lives.
3) Go to their hardcore base and say, “We need you to secure this seat next year.”
And then, after winning in November, they would have the moral and political high ground to add Tom Cotton or Ted Cruz or whatever other crazy right-winger they could muster up for the seat.
But, they know they’re going to lose, and they know the electoral politics of this Supreme Court seat are a loser.
So if you’re going to lose, why not rush to fill this seat? As they see it, the math is either
- 6-3 conservative majority in 2020, or
- 5-4 conservative majority next year
In that equation, rushing to fill the seat now makes all the sense in the world.
And this is why Democrats must scramble that math now. And it goes like this:
“If you fill that seat this year, we expand the court next year.”
That’s it! We can make the potential pain even worse by promising to expand not just the Supreme Court, but every appellate and circuit court as well!
Suddenly, the GOP’s equation looks like this:
- 5-4 conservative majority in 2021, or
- 7-6 or even 9-6 liberal majority
In other words, Democrats would expand the court to either 13 or 15 seats to secure the majority. That 6-3 conservative majority would be short-lived, and the entire court system would be expanded by hundreds of new liberal judges, swamping out the advantages secured in the last four years by Republican Senate Majority Leader Mitch McConnell’s relentless efforts to reshape the judiciary.
The only thing preventing Democrats from expanding the courts is precedent, tradition, and political considerations. Trump, McConnell, and the rest of the GOP have made it clear that they don’t give a damn about those traditions, nor do they care about being massive hypocrites when it comes to control of the courts.
So the question Republicans need to ask themselves is, do they surrender this seat and live to fight another day, or do they blow all traditions up and open the doors for Democrats to undo all that conservative hard work to remake the judiciary, including the Supreme Court, for a generation?
Let there be no doubt: The only reason Republicans are even thinking about rushing this is because they have zero confidence in actually winning this election.
P.S. To those who worry that the GOP might just turn around and do the same the next time they have a trifecta—control of the House, Senate, and White House, the answer is simple—don’t give Republicans control of the trifecta. We, as a movement, have to learn to fight every election as though the judiciary is on the line, because you know what? It is. The alternative is to let Republicans do what they did—steal a seat from President Barack Obama, then let Russia help steal an entire election, as we sit there pretending that there are norms and traditions worth preserving.
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