Republican lawyer and activist Chris Truax explains why “Filling Ruth Bader Ginsburg’s Supreme Court seat would be a disastrous Republican move” in a USA Today op-ed. As Truax writes, “even if Senate Republicans were to manage to vote on a nomination before Nov. 3, retribution would be swift, predictable and dire should Democrats seize control of both the Senate and the presidency. Here’s the likely scenario…On the first day of the new Congress, the Senate would amend its rules to eliminate the legislative filibuster…On the second day of the new Congress, a bill would be introduced to amend 28 USC 1 and increase the size of the court from nine to 15…Within a month, the Senate would confirm two new Supreme Court justices with the rest following shortly thereafter. The conservative Supreme Court Dream Team wouldn’t last a single term…There is simply no way congressional Democrats are going to smile ruefully at their Republican colleagues and let bygones be bygones. There will be retribution, and that retribution will be expressly calculated to teach Republicans the meaning of powerlessness. It won’t be pretty to watch. It won’t be good for the country. But it will happen, nonetheless.”
In one of his best Washington Post syndicated columns, E. J. Dionne, Jr. argues “Allowing President Trump and Senate Majority Leader Mitch McConnell (R-Ky.) to complete a judicial coup and install a 6-to-3 conservative majority will be, in both form and substance, a triumph for anti-democratic forces and anti-democratic thinking…This is why we must reject the fake moderation of those who pretend that both sides in this fight are equally partisan, equally stubborn and equally at fault. No. It’s the American Right that has been willing to abuse power again and again to achieve its goal of imposing a radical approach to jurisprudence that would undercut democracy itself…There is no liberal analogue to the Shelby County and Citizens Uniteddecisions, which changed the rules of the game in anti-democratic ways; no liberal analogue to the Merrick Garland blockade; and no liberal analogue to the lawlessness of Bush v. Gore…The real court-packers are McConnell, Trump and conservatives who draw inspiration from what some of them call a “Constitution in exile…If the court-packers succeed in forcing another conservative onto the court regardless of the outcome of the 2020 election, enlarging the court would be a democratic necessity, not payback.”
In “The wildly unpredictable politics of the SCOTUS opening” at CNN Politics, Chris Cillizza writes, “Several prominent Democrats have floated the idea of expanding the court, including California Sen. Kamala Harris, Joe Biden’s running mate. (Former South Bend Mayor Pete Buttigieg said during his presidential campaign that he would go from 9 seats to 15 on the court.)…Biden, however, has been resistant to that idea. “I would not get into court packing,” he said at an October 2019 debate. “We add three justices; next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”…The question for Democrats, then, is how much — if at all — they inject the idea of adding court seats into the fall campaign. On the one hand, it might excite their base. On the other, it could play into Trump’s hands by giving a preview of what Democratic control at all levels of government might look like.”
Reproductive rights are not the only reform that will be reversed if the Republicans get a 6-3 majority on the Supreme Court. Abdul El-Sayed explains why “Obamacare could be doomed if Trump fills another Court seat.” El-Sayed writes, “The stakes couldn’t be higher. In the middle of a pandemic, a confirmation of one more Trump justice could end protections for Americans with preexisting conditions and kick millions off their health insurance…On November 10, the court is scheduled to hear arguments in California v. Texas, a case which could, yet again, decide the fate of the Barack Obama-era Affordable Care Act. Republican-appointed judges have already deemed it unconstitutional in a series of lower court rulings in 2018, setting up this appeal…Obamacare survived its last Supreme Court battle by one vote, and the man who has spent years trying to destroy it now wants to hand-pick the successor of one of the five justices who voted to uphold it. If Trump’s appointee is seated prior to November 10, it could mean the end of the law as we know it — and leave millions of Americans without healthcare in a pandemic.”
“Trump’s shortlist is littered with people who have spent years trying to get the Affordable Care Act overturned or repealed, El-Sayed continues. The list is a stark reminder that he has spent his entire presidency trying to kick millions of Americans off their healthcare — and is continuing to do so even during a global pandemic that has taken the lives of almost 200,000 Americans…With millions being thrown off their private health insurance, this moment calls for more protections for people with preexisting conditions and public healthcare — not less…ending the Affordable Care Act would be catastrophic for public health at any time, and even more so in the middle of a pandemic…More than 100 million Americans with preexisting conditions would lose legal protections that block insurance companies from denying them coverage. Tens-of-millions of Americans who rely on Medicaid expansion would have the rug pulled out from under them. Our healthcare system would be thrown into chaos at a time where it’s already scrambling to save lives.”
It should matter more that “62% Say Winner Of Election Should Choose RBG Replacement,” as Martin Perez reports at Forbes. “A majority of United States adults think the winner of the November election between President Trump and former Vice President Joe Biden should decide who fills Ruth Bader Ginsburg’s Supreme Court vacancy, according to a new poll conducted by Reuters and Ipsos and published on Sunday, a sentiment not shared by Sen. Majority Leader Mitch McConnell (R-Ky.) and President Trump…Surveying Americans on September 19 and 20 following Ginsburg’s death on September 18, the poll found that eight out of 10 Democrats and five out of 10 Republicans believe lawmakers should wait until after the election to nominate a successor to the Supreme Court.”
Paul Waldman brings the political moment into clarifying focus at The American Prospect, and writes, “the ruthlessness gap between the two parties has widened to a chasm. As I’ve often said, Republicans are the party of “Yes, we can” while Democrats are the party of “Maybe we shouldn’t.”…That has seldom been more clear than it is right now. Should the Senate confirm whichever 40-something far-right Federalist Society judge Donald Trump picks, it will mean that conservatives will enjoy a 6-3 majority on the Supreme Court despite the fact that they lost the popular vote in six out of the last seven presidential elections…That majority will be used to reinforce this age of minority rule, in which Republicans enjoy the support of far fewer Americans than Democrats and pursue a remarkably unpopular agenda, but nonetheless control most of the country’s key centers of power…Does that make you angry? It should. And it should make you want to do something about it…But if you really want to get ticked off, think about what this new conservative Supreme Court—one so conservative that depending on how you measure it, Brett Kavanaugh will sit at its ideological midpoint—is likely to do…if Biden does win and Democrats take control of the Senate, they should immediately eliminate the filibuster, then pass bills to give statehood to the District of Columbia and Puerto Rico. Not only would it be the right thing to do, it would likely mean four more Democratic senators, which would at least begin to address the fundamental tilt that gives Republicans an unfair advantage in the Senate, where far more Americans vote for Democratic senators yet Republicans hold a majority.”
“The Trial-Heat and Convention Bump Forecasting Models have an excellent record for accurate predictions of the presidential elections going back to 1992,” James E. Campbell writes in “The Trial-Heat and Convention Bump Forecasts of the 2020 Presidential Election” at Sabato’s Crystal Ball. “The forecasts, taking into account the economic indicator’s problem this year, indicate that the national popular vote division should be very close. The four versions of the forecasts are quite consistent in predicting an even narrower popular vote margin for Democratic candidate Joe Biden than Hillary Clinton received in 2016 when she won the popular vote, but lost the electoral vote. The electoral vote division in 2020 could easily go either way…And, lest we forget, there are a number of nearly equally brutal congressional races to be decided and with them the partisan control of the House and Senate. My “Seats-in-Trouble” forecasting models based on the Cook Political Report’s handicapping of congressional contests in mid-August predicts Democrats to gain five seats and with them majority status in the Senate and predicts Republicans to gain five seats in the House — but we should not be too surprised if the likely turbulence of the presidential contest in the remaining weeks reverberates into some of these congressional races as well.”
At FiveThirtyEight, Kayleigh Rogers shares some disturbing data about ballot-rejection: “In North Carolina, absentee ballots have already been sent back and the state has been updating statistics on those ballots daily. As of September 17, Black voters’ ballots are being rejected at more than four times the rate of white voters, according to the state’s numbers.1Black voters have mailed in 13,747 ballots, with 642 rejected, or 4.7 percent…North Carolina allows for a process called “vote curing,” where voters are notified that there’s a mistake and given a chance to fix their ballot. But that’s not an option in every state: only 19 states currently allow some form of ballot curing. And even that isn’t foolproof. In Nevada’s statewide primary in June, for example, 12,366 ballots had a missing or mismatched signature, but even after voters were notified to fix it, only 45 percent were successfully cured…In North Carolina alone, 837,685 of the state’s 7.1 million voters have requested absentee ballots so far…In Florida’s 2018 midterm elections, ballots cast by Black voters, Hispanic voters and voters from other racial and ethnic minorities were rejected at twice the rate of ballots cast by white voters, according to a report from the Florida ACLU. A team of university researchers found a similar pattern in Georgia that year, where ballots from Black voters were rejected at a higher rate than those from white voters, even when accounting for county-level differences in rejection rates…In Georgia, 5.8 percent of mail-in ballots were rejected [in 2016]. But there were a lot fewer voters casting ballots by mail in 2016. Any vote lost is a problem, but 1 percent of a few million votes can be an election-defining one…In Oregon, which has had mail-only elections for 20 years, 0.69 percent of mail ballots were rejected.”
I don’t know how to explain this to partisan Democrats, but most Republican talking points are internally consistent and theoretically more valid.
This Scotus “controversy” is yet another example.
Ginsburg’s “dying wish” that her position not be filled is a juridical imprudence that goes against the separation of powers.
She did enough damage via her choice to stay on the Court when she could/should have retired.
The vacancy is not part of her “estate”.
The right is right to point out the contradictions in terms of democratic legitimacy of these notions.
And while the right is completely hypocritical on almost any issue related to democracy and the rule of law, and has been as back as we can look, the problem for the left is that the right doesn’t need to be consistent or right to win because its electors care about winning and not about values.
It is the left that has to be consistent about what it says versus what it does because its voters have been reduced to voting for tradition and symbols and not for any material gains.
Furthermore the right wing explanation is internally consistent and hypothetically more democratic than what Democrats are saying. They are saying they run on a platform of filling Scotus vacancies. What is so wrong about that?
Bipartisan traditions can only be bipartisan if both parties suscribe to them. If not let democracy take its course.
The focus on the Court delegitimizes it by making it the main political forum the left would be focusing on.
The Senate first and the Electoral College are what cause the Court to be packed with conservatives. The Court per se isn’t that much of a problem if US federalism didn’t annul US democracy. And you won’t get to fix US federalism just by talking about US democracy.
The left needs a theory of federalism that doesn’t just get rid of federalism. That simply won’t happen. Every time it is tried it fails. Not even the Civil War fixed this, in large part because liberals also believe in federalism, just like they believe in checks and balances, including strong judicial review.
The left doesn’t have a constitutional reform project that is coherent and well known.
Most liberals and moderates want to treat broken politics as a matter of a few rotten apples and a few technical fixes.
The Supreme Court, Senate, Electoral College and drawing of House seats are all fundamentally broken. There is a need for constitutional reforms but those reforms will never happen unless (a) someone demands them relentlessly and (b) the proposals have the slightest possibility of being backed by enough people on the center right.
The progressive era pushed several major constitutional reforms.
I don’t see the left achieving reforms with ideas like abolishing the Electoral College, making DC a state (much less Puerto Rico which hasn’t even requested statehood) and just packing the Court, etc, without taking into account center right views on these issues.
All of these 3 options are seen as being against the spirit of the Constitution by the right, for historical reasons that are pretty well thought out and legitimate. Yes right wing politicians are mostly cynical but we shouldn’t judge right wing voters by the motivations of their leaders.
The left shouldn’t be afraid of pushing say for a constitutional convention.
I saw liberals oppose a con-con in NY for example for no reason other than speculation about loss of rights.
Why is the left so afraid of even discussing things?
We could be discussing alternatives like:
1. National Senators, Representatives and members of the Electoral College, in addition to the current ones elected at the state level. Some of them could be elected by proportional representation.
2. A double round election requiring a majority of both the popular vote *and* the Electoral College.
3. The Electoral College could also be elected by congressional district, which wouldn’t even require a constitutional amendment.
Weirdly enough Andrew Yang was the candidate with the most innovative ideas in the last primary. His idea of paying for Universal Basic Income with a national Value Added Tax is really something to follow up on.
Group think has really atrofied the ability of the left to argue to broader publics.
The US needs a new constitutional settlement that will be seen as legitimate by people beyond cities.
Problem is the center left also sees the Constitution as sacrosanct, just like they saw RBG as a legal and political god.
At the very short term, when it comes to redistricting is the Democratic party in favor of further packing Democrats inside cities or with redrawing so we can make more suburban districts competitive (yet more moderate)?