Ruth Bader Ginsburg

Every night I think I’ll get to bed early, perhaps even finish the Don Winslow which, I admit, is now turning into a struggle. Lately, I’ve been managing neither. US news always breaks late and I end up staying up to watch it, avoiding the book which, frankly, in its last 25% details constant atrocities by the various factions in the drug war. I’ve enjoyed it but I could do with a break from reading about beheadings and dismemberments just before I settle down for the night.

About midnight last night, the news of Ruth Bader Ginsburg’s death broke. It was an utter shock, though has obviously expected for a long time. I know people are saddened by her passing – I am too – but the political ramifications of this are huge coming as they do at this moment. Trump will try to push through his third appointment to the Supreme Court, despite the high moral tone that Republicans took in Obama’s last year in office, when they said it was wrong to appoint justices under such circumstances. Merrick Garland was left in limbo for nearly 300 days, I think it was, because Republicans refused to accept his nomination. Now they want to rush through a nomination within 50 days of a general election.

My gut tells me they won’t do it. I’d be surprised if they had the votes in the Senate, but not because I think those Senators have high ideals. Many – Susan Collins being the most obvious – are in difficult fights that were made difficult by their actions around Trump’s previous pick for the Supreme Court. Kavanaugh changed the political landscape and really gave liberals a new reason to get out and vote. Voting for Trump’s third SCOTUS pick would almost guarantee that they’d lose in November.

The often-unspoken reality of US politics in the past four years is the way that Democrats have accepted the unfairness of the system. For the second time in two decades, Democrats have seen their advantage in the popular vote mean nothing. Now a minority government will be pushing through a supreme court nomination that will see the complexion of American culture change for decades, especially aroud social issues such as abortion and worker’s rights. Republicans should be wary about what they wish for. Their hold on power is predicated on the Democrats believing that the system is fair (even though it’s not).

The Senate disproportionately favours small rural states. Consider, for example, that California sends the same number of senators to Congress as does Alaska, yet California’s population (about 40 million people) dwarfs that of the other state’s approximate 750,000. It means the power of a California’s vote means far less than that of an Alaskan. It’s demonstratively unfair.

This is why I suspect Republicans might not push through the nomination. They might try – Trump will certainly be eager for it as will McConnell – but if they and they were to succeed, Democrats will simply decide that “fairness” is no longer meaningful. There’s nothing in the Constitution that states how many Supreme Court justices there have to be. Indeed, I’ve heard reasonable arguments that it should be expanded to 21, like some of the lower courts. 21 justices would mean that there’s far less meaning should one become ill. Certainly, it should avoid the shameful situation we’ve seen over the past few years where Ruth Bader Ginsburg had a huge burden placed upon her, in her senior years whilst battling a terrible illness. If I was Biden, I’d quite welcome the Republicans loading the bench with another conservative. It would just give him justification to load it with, say, four, six, or eight young liberals in the next three years, should the Democrats win the Senate (which this development makes far more likely).

It could yet turn out that Donald Trump is the best thing that’s ever happened to the Democratic Party.

3 thoughts on “Ruth Bader Ginsburg”

  1. Fascinating. I saw you put this forward on Twitter this am when I was catching up. Glad to have a fuller explanation. In a way I hope that you’re right in the first instance that they wont do it because they dont have the votes. It’s a question of whether McConnell is willing to piss away the senate majority for trump’s supreme court nomination. All signs are yes, I agree. I also assumed that there had to be 9. So there is nothing from stopping Biden from appointing another 11?? Fascinating. My question is do you think Biden is the man to break the system? You’ve rightly said the reason why Bidens nomination was essential was that hes the hardest to paint as a ‘radical leftist socialist’. Could that lack of radicalism be a disadvantage in these circumstances?

    1. McConnell put out a letter to Senate Republicans last night (I think) telling them to cool down and don’t assume they’re going for the nomination. Trump will push for it and McConnell might well attempt it, but I think McConnell will/should also be worried. They could be shooting for the moon. The money going to liberal/Democrat causes last night apparently shot up (at a time when Trump’s campaign looks like it’s running out of cash). This could be very bad for Republicans.

      I know what you mean about Biden. My worry has always been that he’d give Trump a pass on the past four years when I genuinely think he needs to be prosecuted, just to stop future presidents thinking they can do the same. That said: Democrats can’t allow this to stand if Republicans did manage to confirm a justice. There really isn’t a number in the Constitution, as far as I know. I think there have been 10 at one point but Biden could (and I think he should) go to 11 to fix this “wrong”. And I do think it will be a wrong. Not just hypocritical but deaf to the reality of the 2016 election. Trump won due to a flaw in the system. Republicans have been rigging the elections for decades, if not longer. I think Dems need to be +5% just to become favourites to win an election, which is shameful. I think Republicans can only push them so far before they decide enough is enough.

      There’s also a little wrinkle I read about in the post-election period when they could also try to confirm a candidate. That’s even worse, in a sense, than confirming their nominee before November, but I believe if Mark Kelly wins in Arizona, he can immediately take his seat in the Senate, since it was John McCain’s old seat and is technically a “special election”. Different rules mean he could cut the Republican majority as early as November.

  2. Thanks for this, David. I was feeling pretty despondent when I saw the news about RBG I have to admit.

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