Earthquake

As I was getting ready to work on a post about Indiana or Louisiana (hadn’t figured out which), the news about the passing of Ruth Bader Ginsburg reached the world. Suddenly, trying to sort out why FDR and the election of 1932 pushed Indiana from purple to red wasn’t urgent.

It’s always a big deal when a sitting justice passes away. There’s a scramble. And whether it was William Rehnquist, Antonin Scalia, or any other justice with a lengthy career and decades on the court, except for the day of the funeral, political considerations dominate the news. Yes, 2020 is an extra big mess, but the exception is when the court isn’t politicized, not when it is.

It’s always a big deal when a particularly meaningful justice leaves the court. RBG was nominated right before Steven Breyer. They served together for almost three decades. They voted together well over 90% of the time. In terms of judicial impact, it doesn’t make much difference that Breyer is the one who will be hearing arguments when the new session begins on October 5. Emotionally it’s a huge difference.

The replacement of an icon raises the stakes. Part of the commotion over Clarence Thomas, long before anyone had heard of Anita Hill, was the idea of replacing Thurgood Marshall with a young Black conservative who could both fill his seat for decades and vote to undo much of what he stood for. Part of how Mitch McConnell rallied GOP senators to support his plan to ice Barack Obama’s nomination was who was being replaced. Had Breyer passed instead of Scalia, the gambit might not have worked or even been attempted.

There were two things at work. Conservatives were losing their icon and judicial bulwark. And they stood to lose their narrow 5-4 majority on most close decisions. If there was ever a time for desperate measures, it was then. Now liberals have lost an icon and risk facing a 6-3 minority on the Court. As Daniel Kahneman has shown, humans get way more agitated about losing than they get excited about gaining.

Swapping Scalia for Garland was a loss for conservatives, and they were more fired up than liberals were pleased. When Neil Gorsuch was nominated by Donald Trump, it left the court about where it was before. Subsequent decisions have shown Gorsuch is a bit more centrist than Scalia. Then we had the nomination of Brett Kavanaugh to replace Anthony Kennedy. His confirmation process won’t be remembered for discussions of ideology. And we don’t really have the data to prove whether conservatives were happier he got confirmed, or progressives were more angered.

Again, the balance of the court was similar. Though Kennedy was a little more centrist than Kavanaugh, it’s hard to argue the two new justices net/net are to the right of who they replaced. Whomever Trump picks to replace RBG will be. By far. Odds are it will be a woman. And she’ll be actuarially set to hold that seat for decades. Garland was in his early 60s and relatively moderate. This person won’t be either of those things.

It’s the perfect storm. Loss aversion like with Scalia. Replacement of an icon with their bizarro version as with Marshall. Then you layer on the clear hypocrisy of fast tracking this nomination while Garland was blocked. Unfairness + loss + slap in the face + new justice being on the court until 2050ish.

There’s nothing Democrats can do to stop this. Blatant hypocrisy and concocting stupid corollaries to previous invented rules (re: McConnell this is different than 2016 because the Senate majority and president are of the same party) are not unconstitutional. Democratic Senate Majority Leader Harry Reid did away with the judicial filibuster in the Obama years because he was mad McConnell was blocking judicial nominations. This is going to be Reid’s legacy. It was obvious at the time Democrats would pay in full one day.

Republicans can rush through a nomination + confirmation before the election. They can also just vote anytime between November 4 and when new senators are sworn in on January 3, 2021. They’ll do whatever McConnell thinks will help him keep his majority. And if he loses said majority, future Minority Leader McConnell will still push this through.

With Mike Pence available to break a tie, four Republicans would have to show a willingness to push back against McConnell that hasn’t yet existed. Remember, even those senators who hate Trump and are afraid to publicly show it still like the idea of a conservative judiciary. Putting up with presidential tweets was the price of keeping their jobs and getting to confirm justices like the one being nominated. Expecting them to say no is like assuming a 6 year old would voluntarily pass up a giant cookie after eating all his vegetables just because his sister dropped her cookie on the floor and the dog took it.

Susan Collins, maybe. But who knows what she’d do if the vote was after she’d already lost. Lisa Murkowski, maybe. She’s said she doesn’t think it’s fair to nominate someone before January. But would she actually vote no in November? Mitt Romney, maybe. He’s shown less fealty than the others. Even if all vote no, Democrats would need another. Lamar Alexander? Don’t bet on it. He’s retiring and still wants to be welcome in Tennessee.

There’s been some debate for the last four years about whether McConnell is playing Trump or vice versa. If Trump sends a nominee in the next several days, as is expected, you may have your answer. This is great for Mitch. Regardless of whether he wins or loses the Senate majority, he gets to ensure a conservative majority on the Court, and keep his donors very happy.

It’s more mixed for Trump. He’s losing, so you can argue any chaos is good for him. We know he thinks this. Every minute spent mourning RBG and/or fulminating over her replacement is a minute not spent on Covid death counts. But loss aversion will motivate Democrats more than adding to the majority will inspire Republicans.

After Anita Hill, Democrats elected several female senators in 1992. This is far more immediate and likely even more cutting. Predictions are always dangerous, but this may have almost clinched the election for Joe Biden.

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