In the confluence of events leading to the unique drama caused by the death of U.S. Supreme Court judge Ruth Bader Ginsburg, two stand out.
One took place in 2013 when Harry Reid, majority leader of a Democratic-led Senate under president Barack Obama, invoked what was known as the “nuclear option.” Frustrated that Republicans were able to block Obama appointees despite holding fewer seats that Democrats, Reid changed long-standing rules that allowed the smaller party to create gridlock by mounting a filibuster.
Democrats presented it at the time as a far-seeing reform that would end logjams and create a new, more efficient Senate. Republicans warned them it was a bad idea. “What goes around comes around,” said Sen. John Thune of South Dakota. “Someday they’re going to be in the minority.” Today Republicans have 53 Senate votes to the Democrats’ 47, with just a simple majority needed to approve appointees.
What goes around comes around
The other was a legacy of Ginsberg herself. She was already 79 when Obama began his second term, and had endured two bouts with cancer. Her heroic determination to stay on the job through three more bouts contributed much to her legacy as both a personal and judicial icon. But in holding onto the seat despite declining health she also robbed Obama of the chance to name a younger and healthier replacement, and presumably one likely to share her liberal views.
Neither was the fault of Republicans. But together they opened the door for President Donald Trump to try to rush through a replacement for Ginsburg pleasing to his fans, especially among evangelicals and the hard-line right. It’s his core group and they were going to vote for him anyway, but a no-holds-barred war over Supreme Court control may do a lot to convince conservative voters who had tired of Trump to drag themselves down to the polls on election day, when turnout will be crucial to the outcome. People who’d have been happy to see the back of him could become his salvation.
The predicament is emblematic of what Trumpism is doing to America. Liberals, “progressives” and left-wingers — among many others — revile him for his personal qualities. But once he’s gone, those should largely go with him. It’s the changes he’s brought to American institutions that will have more far-reaching impact, and the gathering conflict over the court looms large among them.
Trumpism politicizes everything. It attacks the power of any institution that doesn’t serve the president’s immediate needs: the FBI (“badly broken”), intelligence agencies (a bunch of “losers”), the military (led by “dopes and babies”), the media (the “enemy of the people,”) judges who make rulings he dislikes (the judge handling the case against Trump University was “a hater,” the judge who halted a ban on asylum-seekers was a “disgrace”).
The president and current Senate majority leader Mitch McConnell have broadcast their determination to take advantage of Ginsburg’s death to appoint someone who will solidify its conservative majority in a 6-3 advantage. The degree to which the country’s highest court is already viewed in political terms is reflected in the assumption by many Democrats that conservative judges will automatically undermine the rights and liberties of fellow Americans, plunging the country into a dark age that could last for years, until liberal-minded warriors can right the wrongs and push through their own single-minded agenda.
Whether they’re right is up for debate. During former president Bill Clinton’s final term, only two of the nine judges were nominated by Democratic presidents and the union somehow survived. History has shown members of the court can be less predictable than sometimes assumed.
Nonetheless, in making Ginsburg’s replacement a purely partisan issue, Trump and McConnell serve to further undermine public confidence in the highest court as a reliable, independent body, one of three institutions — the court, the Congress and the White House — that supposedly bring balance to governance of the country. Typically, they make no bones about their aims. To succeed, McConnell has to violate the principle he asserted in Obama’s final year, when he blocked the president’s nominee on the basis that court positions were too important to fill in an election year. Democrats, meanwhile, have to violate their own once firmly held belief that nominations should absolutely go ahead.)
McConnell is fine with abandoning principle to opportunity. He’s already pleading with GOP senators not to take firm positions until he can gather them in Washington to influence their decisions. It’s possible the vote won’t take place until after the Nov. 3 presidential election. Should Trump be defeated and Republicans lose control of the Senate, it raises the possibility the choice will be imposed by a rejected president and defeated party in the interregnum between the election and the inauguration. Other, even more apocalyptic scenarios are being bandied about: how about a defeated president who refuses to leave office, who labels the vote a fraud and names a reliable ally to the court in time to help defeat legal challenges?
As Thune warned of Harry Reid’s bright idea, what goes around comes around. Democrats have wasted no time in pledging if Republicans push ahead now, they’ll find a way to get even later. Imagine the misery a future Democratic regime powered by the leftist fervency of Alexandria Ocasio-Cortez and her troops could make of life for conservatives down the road.
“A house divided against itself cannot stand,” Abraham Lincoln famously warned. Later in the same speech, he predicted: “It will become all one thing or all the other.” The contest that followed cost 600,000 lives and a rupture that reverberates still. The outcome of today’s divide will certainly be less bloody, but there’s no greater certainty as to what sort of country will emerge.
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