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How Abraham Lincoln Fought the Supreme Court |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=53534"><span class="small">Matt Karp, Jacobin</span></a>
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Monday, 21 September 2020 08:31 |
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Excerpt: "It is not enough to question the decisions, the justices, or even the structure of the current court - we need to challenge, as Abraham Lincoln did, the foundation of its power to determine the law."
George Peter Alexander Healy, 'The Peacemakers', 1868. (image: Jacobin)
How Abraham Lincoln Fought the Supreme Court
By Matt Karp, Jacobin
21 September 20
It is not enough to question the decisions, the justices, or even the structure of the current court — we need to challenge, as Abraham Lincoln did, the foundation of its power to determine the law.
 he death of Ruth Bader Ginsburg, just six weeks before a presidential election, is a scenario out of nightmares. But in many ways, it only dramatizes a fundamental problem that has faced the country for years: the likelihood that the Supreme Court, dominated by extremely conservative justices for decades to come, will act as the far right’s major bulwark against democratic reform.
Faced with this prospect — and stung by the ruthlessness with which leading Republicans have pursued it — many liberals have come to support major judicial reforms, most of them modeled on Franklin D. Roosevelt’s plan to expand the court in the 1930s. Yet in some ways, the emphasis on FDR’s “court-packing” idea obscures a historical moment when progressives mounted an even more radical challenge to judicial supremacy: the antislavery struggle of the Civil War era.
In 1857 a Southern-majority Supreme Court ruled in Dred Scott v. Sandford that Scott had no legal right to bring suit in federal court — that, in Chief Justice Roger Taney’s famous words, colonial and US history showed that black Americans “had no rights which the white man was bound to respect.”
Equally inflammatory was the court’s ruling that Congress had no constitutional right to ban slave property in the federal territories. This decision outlawed the national platform of the antislavery Republican Party, which was premised on blocking slavery’s expansion to the West.
Slaveholders and their allies — including Democratic President James Buchanan and the overwhelmingly Democratic US Senate — embraced the decision as a final settlement of the slavery question. Taney had proclaimed Dred Scott “the law of the land,” and the ruling party in government agreed with him.
Abolitionists like Frederick Douglass, meanwhile, condemned the decision as the “judicial incarnation of wolfishness.” Yet they knew the problem of proslavery jurisprudence could not be solved by antislavery jurisprudence alone. “We can appeal from this hell-black judgment of the Supreme Court,” said Douglass, “to the court of common sense and common humanity.” The remedy for Dred Scott did not reside in a lawyer’s plea or a judge’s opinion, but in mass political struggle.
For the Republican Party, that struggle meant declaring political war on the idea of an all-powerful judiciary. After 1857 Republicans responded to Dred Scott, as the historian David Potter wrote, not with “an attack on the decision,” but “an attack on the court.”
“The Supreme Court of the United States,” announced the New-York Tribune, the largest Republican newspaper in the country, has “polluted its garments in the filth of pro-slavery politics. From this day forth it must stand .?.?. as a self-disgraced tribunal. And from this day forth it will be one of the great and leading aims of the people of the Free States to obliterate this shameful record and undo what has been done.”
But what could Republicans actually do? By 1858 the court contained five proslavery Southerners, three of their Northern Democratic “dough-faced” allies, and only one (moderately) antislavery justice, John McLean of Ohio. Some suggested immediate reforms, including the appointment of up to five new justices. “This Court is the citadel of Slavery,” reported one Cincinnati newspaper, “and Republicans intend to storm it.”
Probably the most popular idea — maybe even more radical, in its way, than court packing — was a plan to “reorganize” the entire federal judiciary on the basis of the circuit court population.
In 1858 William Seward introduced a bill of this kind, which would have created an instant and enduring free-state majority on the Supreme Court.
“The supreme court,” said Seward, “attempts to command the people of the United States to accept the principles that one man can own other men .?.?. The people of the United States never can, and they never will, accept principles so unconstitutional and so abhorrent .?.?. Let the court recede. Whether it recede or not, we shall reorganize the court, and thus reform its political sentiments and practices, and bring them into harmony with the constitution and with the laws of nature.”
Seward’s plan went nowhere in the Democratic Senate, but kept the national focus on the court as a bulwark of slavery. Ultimately, the most important Republican response was not any of the various technical reform proposals, but a concentrated political attack on the court’s authority as an elevated and impartial arbiter of the law.
Famously, both Seward and Abraham Lincoln accused the court of advancing a proslavery conspiracy: Chief Justice Taney had plotted with President Buchanan to craft a piece of legal “machinery” that would make slavery lawful everywhere. Republicans also denounced “superstitious worship” of the Supreme Court, mocking the “fulsome flattery” of life-tenured judges who, by virtue of their high position, somehow transcended mortal politics. In fact, they were just political appointees like any other.
The Tribune even published a general roast of the court, noting Taney’s “sinister expression,” and describing the dough-faced Justice Robert Grier as “a blonde of a rotund figure” whose “soft and rosy nature .?.?. succumbs under touch and returns into shape on its removal.” A judicial decision on slavery from the “fanatical” Justice John Campbell of Alabama, meanwhile, was “of no more value than the cawing of a raven. He is a middle-aged, middle-sized man, bald, and possessed of middling talents.”
Above all, the Republican assault struck at the fundamental power of the judiciary. The Supreme Court, they argued, had the authority to decide particular cases, but not to settle larger political disputes over the meaning of the Constitution.
Today, we call this power “judicial review,” but as scholars like Keith Whittington have argued, it really amounts to something much more like to “judicial supremacy,” and its roots are not legal or constitutional but themselves political. After Dred Scott, Republicans mounted a direct challenge to this power — perhaps the most aggressive popular attack on judicial supremacy in US history. “A Court makes a decision,” argued one New York legislator, “but does not make the law.”
Nor was this argument confined to the most self-consciously radical Republicans. Maine senator Hannibal Hamlin, Lincoln’s future vice president, offered a blanket rejection of the court’s authority to “decide a political question for us .?.?. We make the laws, they interpret them; but it is not for them to tell us .?.?. what is a political constitutional right of this body .?.?. Of all the despotisms on earth, a judicial despotism is the worst. It is a life estate.”
In 1858, Lincoln’s famous debates with Stephen Douglas turned on the Republican attack on judicial supremacy. Douglas, like other Democratic conservatives, accused Lincoln’s party of seeking “to destroy public confidence in the highest judicial tribunal on earth .?.?. From that decision there is no appeal this side of Heaven. Yet, Mr. Lincoln says he is going to reverse that decision. By what tribunal will he reverse it? Will he appeal to a mob? .?.?. Will he stir up strife and rebellion in the land, and overthrow the court by violence?”
Yet Lincoln persisted in rejecting judicial supremacy — and also the basic idea underlying it, that law somehow exists before or beyond politics, and thus it was illegitimate to resist the proslavery court through popular antislavery mobilization. “We do not propose to be bound by [Dred Scott] as a political rule,” he said. “We propose resisting it as to have it reversed if we can, and a new judicial rule established upon this subject.”
Across the late 1850s, Lincoln argued that “the American people,” not the Supreme Court, were the true arbiters of the Constitution, and that the only way to defeat the proslavery judiciary was through mass political struggle. And after Lincoln and Hamlin were elected in 1860, the new president’s inaugural address articulated this view in perhaps the strongest language he ever used:
[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made .?.?. the people will have ceased, to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.
Once in power, Lincoln and congressional Republicans “reorganized” the federal judiciary and “packed” the court, adding an additional justice in 1863. More fundamentally, though, they simply ignored the proslavery precedents established in the 1850s. In June 1862, for instance, Congress passed and Lincoln signed a bill banning slavery from the federal territories — a direct violation of the majority ruling in Dred Scott. The court meekly acquiesced, recognizing that its political power was long since broken.
As the legal historian Charles Warren later lamented, Republicans’ popular assault on the court crippled the institution for more than a decade: “During neither the Civil War nor the period of Reconstruction,” Warren wrote, “did the Supreme Court play anything like its due role of supervision, with the result that during one period the military powers of the President underwent undue expansion, and during the other the legislative powers of Congress. The Court itself was conscious of its weakness.?.?.?. The loss of confidence in the Court was due not merely to the Court’s decision but to the false and malignant criticisms and portrayals of the Court which were spread widely through the North by influential newspapers .?.?.?.”
Warren’s point, in other words, is that the greatest democratic expansion in US political history — the era of emancipation and Reconstruction — demanded a direct political attack on the power of the Supreme Court. Nor is it a coincidence that the court, as it began to recover its strength in the 1870s, led the reactionary attack on this democratic project.
Drawing direct lessons from the past is a fool’s errand, but this history should remind us that judicial power — however grandly it may be imagined by friends and foes alike — is critically dependent on political currents.
In some ways, the Left today shares the position of antislavery forces in the 1850s. It confronts a rich, well-organized sect, whose commitment to property far exceeds its belief in democracy, and which has made the Supreme Court a citadel of reaction, under the banner of what Jedediah Purdy has called the “Bosses’ Constitution.”
Yet in a deeper sense the Right’s resort to judicial supremacy is not a sign of strength, but an admission of weakness: a beleaguered regime calls upon the authority of the court only to achieve what it cannot accomplish through electoral politics. The Bosses’ Constitution has no more chance of winning majority support today than the slaveholders’ agenda of the 1850s. It is, almost surely, the least popular wing of a larger conservative politics that has come to depend on minority rule.
To make this undemocratic project vulnerable, it must be made visible. It is not enough to question the decisions, the justices, or even the structure of the current court — we need to challenge, as Lincoln did, the foundation of its power to determine the law.
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A Late Dispatch From the New York Correspondent |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=48687"><span class="small">Garrison Keillor, Garrison Keillor's Blog</span></a>
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Sunday, 20 September 2020 12:33 |
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Keillor writes: "A chilly night in New York, fall in the air, geese winging along a flyway over West 91st, a lively crowd watching a playground basketball game. Unusual in these pandemic days, to hear a cheering crowd."
Garrison Keillor. (photo: MPR)
A Late Dispatch From the New York Correspondent
By Garrison Keillor, Garrison Keillor's Blog
20 September 20
 chilly night in New York, fall in the air, geese winging along a flyway over West 91st, a lively crowd watching a playground basketball game. Unusual in these pandemic days, to hear a cheering crowd. We’ve been isolating here since March, avoiding the dread virus, leading a life more like that of a lighthouse keeper than a New Yorker, no plays, no Fauré or Bizet or cabaret, though Sunday we sat in a sidewalk café and had a cassoulet, a small soirée, just three of us, me and the Missus and our friend Suzanne whom I like to hang out with because she’s older than I and very lively. She is proof that aging, though likely to be fatal, need not be dull. Gusts of talk, none of it touching on the Unmentionable.
I’m fond of fall, the beauty and brevity of it. Soon the iron gates will clank shut and we descend into the dark trenches of winter. A person always imagines there will be more warm evenings and suppers outdoors, but fall teaches otherwise. And that is what makes life beautiful, the knowledge of approaching November. Last week the world was drenched with the beauty Van Gogh was crazy for and that is why we send our kids off to school, so they don’t become obsessed with beauty and goldenness and can pay attention to algorithms and multiplicity and divisiveness. I was a mediocre student, but every fall I appeared in the classroom door, struggled through college and humanities courses of which I remember nothing at all — I should’ve studied auto mechanics — and then when I was 27, I was hired by a radio station to work the 6 a.m. shift and the same fall, a magazine bought a story of mine for $500. My monthly rent was $80. I was off to the races.
We want what we cannot have. The heart wants life to go on and on. So the old writer goes on writing stories, still hopeful, though there’s plenty of evidence that you hit your peak at forty. You sit doing something you’ve done steadily since childhood and it’s still of keen interest. And Sunday night I dreamed about writing. I’d written a book about the Soviet Union and was invited to talk about it up in the Berkshires and drove on winding roads through little hill towns to a house where I walked up a strange steep staircase with tiny steps to the attic where a dozen people sat around a table to hear my talk. I joked about who should leave first if there were a fire and nobody laughed. They were all communists and took sharp issue with my book and shouted at me in Russian, which I understood but could not speak. The quiet domestic pandemic life has been bringing me a wild dream life.
We bought a new TV in August to liven up our days and somehow cannot figure out how to tune in news programs — which platforms are they on — so we don’t watch them, which is a relief. I’m tired of hearing the name in the news, don’t care to hear words that rhyme with it such as “dump,” “hump,” “lump,” “chump,” “rump,” “slump,” look at the news online and avert my eyes from the smug New York playboy face with the fruitcake hair. It’s time for the election now though it’s September. The election should’ve been held a year ago. The man is a bad dream. I’m an American, I love hamburgers, country music, baseball, small towns on the prairie, the American September, Levi jeans, the poetry of Jim Harrison and Maxine Kumin, and this guy is a Russian who learned his English at the movies. He isn’t one of us, not even slightly.
Nonetheless, life is good. Our happiness never depended on foreign con men. I’m here because my parents loved each other and even though Hitler had overrun much of Europe and was bombing England and people could see what was coming, nonetheless those two nestled in each other’s arms and took their pleasure and I appeared in 1942, on the day of the American assault on Guadalcanal. We got through the Forties and we’ll get through the Twenties. Water is coming out of the tap, the mail is left at the doorstep, the buses are running, and the grocery store is open, we’re in business. The election approaches. Let’s get it done.
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FOCUS: The Possibility That Trump Will Not Voluntarily Leave |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=15102"><span class="small">Bernie Sanders, Reader Supported News</span></a>
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Sunday, 20 September 2020 12:08 |
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Sanders writes: "Yes. This is a presidential election between Joe Biden and Donald Trump."
Vermont Sen. Bernie Sanders greets people at a campaign field office in Cedar Rapids, Iowa. (photo: Joe Raedle/Getty Images)
The Possibility That Trump Will Not Voluntarily Leave
By Bernie Sanders, Reader Supported News
20 September 20
 es. This is a presidential election between Joe Biden and Donald Trump.
Yes. This is an election about health care, education, the economy, climate change, criminal justice, and so many other important issues.
More importantly, however, this is an election about whether or not we retain American democracy. This is an election we must not lose.
Today, virtually every national poll and most battleground state polls have Biden ahead. Yet, Trump continues to repeat a message he tweeted several weeks ago: "The only way they can take this election away from us is if this is a rigged election."
Think about what that means. What he is saying is that if he wins the election, that's great. But if he loses, it’s rigged. And if it’s rigged, then he is not leaving office. Heads I win. Tails you lose.
Never before in the history of this country have we failed to have a peaceful transition of power from one president to the next. And now, for the first time, we are facing an election where it is not clear that a sitting president will voluntarily leave office if he loses.
I am not in the habit of quoting former President Ronald Reagan, but I think something that he said in his first inaugural address makes the point about how important this part of our heritage is.
Here is what President Reagan said:
“To a few of us here today, this is a solemn and most momentous occasion; and yet, in the history of our nation, it is a commonplace occurrence. The orderly transfer of authority as called for in the Constitution routinely takes place as it has for almost two centuries and few of us stop to think how unique we really are. In the eyes of many in the world, this every-four-year ceremony we accept as normal is nothing less than a miracle."
Protecting this “orderly transfer of authority,” as President Reagan characterized it, is absolutely essential if all of us — Republicans, Democrats, Independents — want to protect our democracy. And the truth is that Donald Trump poses the biggest threat to our democracy that we've ever seen from a sitting president.
Remember: Donald Trump is the president who made the preposterous statement after the 2016 election, which he won, that "millions of people voted illegally." That's when he won. What will he say in 2020 if he loses?
This is the president who was asked by Chris Wallace on Fox News whether he would accept the election results. Trump refused to give a straight answer, and said: "I have to see. No, I’m not going to just say yes. I’m not going to say no, and I didn’t last time either."
This is the president who has talked about delaying the election.
This is the president who's now talking about a third term, in violation of the Constitution.
And it gets worse.
Last week Roger Stone, a convicted felon who was pardoned by Trump, stated on a right-wing radio show that Trump should declare "martial law" if he loses the election.
Roger Stone continued to say:
"The ballots in Nevada on election night should be seized by federal marshals and taken from the state. They are completely corrupted. No votes should be counted from the state of Nevada if that turns out to be the provable case."
Stone is following the rhetoric from Trump that mail-in ballots will be "rigged," and the election should be called into question before a single vote has been counted.
And just the other day Michael Caputo, a right-wing political operative who, incredibly, is the assistant secretary of public affairs at the Department of Health and Human Services, made the outrageous suggestion that left-wing voters are planning an armed revolt following the election. He stated in a video to his social media followers: "If you carry guns, buy ammunition, ladies and gentlemen, because it’s going to be hard to get."
Think about that. A senior Trump official is telling Trump supporters to purchase ammunition for an armed conflict here at home.
Trump himself has recently threatened to use the Insurrection Act — a law that allows the president to bring in the National Guard to confront civil unrest. If there are protests on election night, Trump says: "We’ll put them down very quickly if they do that. We have the right to do that. We have the power to do that, if we want.”
At a time when Trump is urging tens of thousands of his supporters to intimidate voters by becoming "poll watchers," he is now threatening to bring in the National Guard if there are protests.
It is becoming clearer by the day that Donald Trump will do whatever it takes to maintain the power of the presidency.
Miles Taylor, a life-long Republican who previously served as chief of staff inside the Trump administration’s Department of Homeland Security, warned that Trump will stop at nothing to defeat Biden.
"Put nothing past Donald Trump," Taylor told the Associated Press. "He will do anything to win. If that means climbing over other people, climbing over his own people, or climbing over U.S. law, he will do it. People are right to be concerned."
In addition, after Trump proposed postponing the election, another Republican, Steven Calabresi, one of the founders of the conservative Federalist Society, wrote an op-ed in the New York Times condemning Trump. Calabresi called Trump's comments "fascistic" and said that his call to delay the election was an impeachable offense.
So, given this very dangerous situation, what are we going to do about it?
Here is what I believe needs to happen in order to prepare for what could be an unprecedented chain of events following the November election:
- First and foremost, we must do everything we can to ensure Joe Biden wins by the largest possible margin on November 3. The better Joe Biden does, the harder it is for Trump to overturn the election.
- We need to mobilize our movement in an unprecedented way to produce the largest voter turnout this country has ever seen. The future of our democracy depends on it. And if we are successful in defeating Trump, we must also stay vigilant and do everything possible to prevent Trump from staying in power if he loses.
- Secondly, we need Congressional hearings with local officials to learn how they plan to handle the Election Day process and the days that follow.
- Senator Chuck Schumer, the Democratic leader in the Senate, and I have written a letter to Mitch McConnell urging bi-partisan Senate committee hearings on this issue. At this historic moment we believe that Democrats and Republicans in the Senate must come together to guarantee the integrity of our election process.
- Every agency at every level of government must do all it can to ensure that we have a free and fair election where every eligible voter can vote without intimidation, and where no one has to put his or her health or life in danger to cast a ballot. That is why Congress must hear directly from election officials to know what measures are being taken to make voting available to all and to ensure a smooth election process.
- Next, with the pandemic and a massive increase in mail-in voting, state legislatures must take immediate action to allow for votes to be counted before Election Day, as they come in.
- The longer it takes to count ballots after Election Day, the more we will be seeing chaos, conspiracy theories and social unrest. Faith in the election system will be undermined if election results are not determined as soon as possible.
- Further, what studies show is that most Democrats will be voting by mail while most Republicans will be voting in person on Election Day. This could create a scenario on election night where Trump and down-ballot Republican candidates are shown in the lead before all the mail-in votes are counted and final results become available. Trump, of course, will call the newly counted mail-in ballots "voter fraud" and will try to use it as another reason to discredit the results. Counting mail-in votes as they come in leading up to Election Day will help ensure a reliable and dependable election process while guaranteeing that accurate results are reported in a timely fashion.
- The news media needs to prepare the American people to understand there is no longer a single Election Day and that we may not know the results on November 3.
- Properly setting expectations ahead of time will be crucial. Never before have we depended so heavily on mail-in ballots in a presidential election, and we already know that some states may be counting votes in the days following the election. If we fail to have a national conversation about this reality, we run the risk of people buying into conspiracy theories and other disinformation as we process election results.
- Social media companies must finally get their act together and stop people from spreading grotesque levels of disinformation and using their tools to threaten and harass election officials.
- It is the responsibility of social media companies to take action against extremists who are spreading disinformation on their websites. We cannot allow any scenario where there is a widespread distribution of disinformation that will harm the integrity of our elections. Further, we need social media companies to prevent users from launching attacks against public officials who are administering the election. Otherwise our whole election process could be compromised.
Let me be very clear:
This is the most important election in the modern history of this country. And for the first time in America, it appears that we have a sitting president who will be reluctant to leave office if he fails to win re-election.
We absolutely must come together in November to defeat Trump by the largest margin possible and stop him from dragging our country in an authoritarian direction. Nothing less than the future of our democracy and our country is at stake.
Over the next 48 days, let us do all we can to deliver a decisive victory for Joe Biden on November 3. And once we do that, let us remain vigilant to see to it that Trump allows for the peaceful transition of power.
In solidarity,
Bernie Sanders
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FOCUS: For Mitch McConnell, Holding the Senate Is the Highest Priority |
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Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=51709"><span class="small">Jane Mayer, The New Yorker</span></a>
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Sunday, 20 September 2020 10:42 |
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Mayer writes: "No one knows for sure how the politics of the Ginsburg seat will play out in close Senate races. But the issue likely puts some of the most endangered Republican candidates in very tough spots."
Mitch McConnell. (photo: Olivier Douliery/Getty Images)
For Mitch McConnell, Holding the Senate Is the Highest Priority
By Jane Mayer, The New Yorker
20 September 20
s the Democrats weigh their options about how to stop Mitch McConnell from filling Ruth Bader Ginsburg’s Supreme Court seat, one tactic that they should forget about immediately is arguing that it would be hypocritical of McConnell to jam in a new Justice so close to an election. Obviously, it nakedly is, given that Ginsburg died forty-five days before the 2020 election, and this was McConnell’s rationale for blocking Barack Obama’s nominee two hundred and sixty-nine days before the 2016 election. But anyone familiar with the Republican senator from Kentucky’s long political career knows he couldn’t care less about hypocrisy; like President Trump, he is immune to shame.
“McConnell will do anything that serves his interests. We know that,” Norman Ornstein told me, shortly after learning of Ginsburg’s death. Ornstein, a political scientist and resident scholar at the American Enterprise Institute whose expertise is Congress, has known every Senate Majority Leader during the past fifty years—including McConnell, quite well. The question now, though, is how McConnell will define his self-interest.
As I reported in April, behind closed doors McConnell has been raising money from big conservative donors for months by promising that no matter how close it might be to the election, he would install Trump’s Supreme Court pick. As a former Trump White House official told me, “McConnell’s been telling our donors that when R.B.G. meets her reward, even if it’s October, we’re getting our judge. He’s saying it’s our October surprise.”
But now that the moment is here, the calculation isn’t quite so simple. On Friday night, McConnell released a statement vowing that a Trump nominee “will receive a vote on the floor of the United States Senate.” While McConnell’s obstruction of Obama’s nominee, Merrick Garland, made him the bane of liberals, he has regarded it with pride as the single “most important decision I’ve made in my political career.” He and many others believe it handed Trump his victory by motivating the politically powerful evangelical bloc to vote for Trump, despite their doubts about him, because he promised to fill the Court vacancy with a social conservative. It’s entirely possible that the same scenario will play out again this November, with Trump and McConnell offering another enticing gift to evangelicals.
But McConnell is also what Ornstein calls “a ruthless pragmatist,” whose No. 1 goal has always been to remain Majority Leader of the Senate. He’s made the conservative makeover of the federal court system his pet project, but if he faces a choice between another right-wing Justice or keeping his control of the Senate, no one who knows him well thinks he’d hesitate for a moment to do whatever is necessary to stay in power. In fact, back in the summer of 2016, when it looked like Trump would lose to Hillary Clinton, far from being distressed at his party’s dim prospects, McConnell was savoring the probability of being the single most powerful Republican in the country, according to a confidant who spoke with him then.
The problem for McConnell now is that it may be impossible for him to both confirm a new Justice and hold onto his personal power as Majority Leader. A power grab for the Court that is too brutish may provoke so much outrage among Democrats and independents that it could undermine Republican Senate candidates in November. As he knows better than anyone, polls show that Republican hopes of holding the Senate are very much in doubt. If Joe Biden is elected, enabling a Democratic Vice-President to cast the deciding vote in the Senate, Democrats need only to pick up three seats to win a majority. And, at the moment, according to recent polls, Democratic challengers stand good chances against Republican incumbents in Maine, Arizona, and Colorado. Democrats also have shots at capturing seats in South Carolina and Iowa.
No one knows for sure how the politics of the Ginsburg seat will play out in close Senate races. But the issue likely puts some of the most endangered Republican candidates in very tough spots. In Maine, for instance, Susan Collins can’t afford to either alienate the Trump base by voting against a conservative Court pick or to alienate moderate Republican women, who don’t want a radically right-wing judiciary. Late on Saturday afternoon, Collins contradicted McConnell’s line, saying in a statement, “In fairness to the American people, who will either be re-electing the president or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the president who is elected on November 3rd.” Hours before the news of Ginsburg’s death on Friday, Lisa Murkowski, an independent-minded Republican senator from Alaska, said that she thought it was too late for a confirmation vote, telling a public-radio interviewer that “I would not vote to confirm a Supreme Court nominee.”
Given those complications, Ornstein predicts, McConnell may “use some elements of delay.” McConnell conspicuously laid out no timetable when promising a Senate vote for Trump’s nominee. Ornstein speculates that he may hold off on a vote until after the election to provide cover for his members but, meanwhile, obtain private pledges of support from them. It would mean he’d have the votes to ram a confirmation through the Senate during the lame-duck period after the election, regardless of who has won the White House.
Senate watchers suggest that the first thing that McConnell probably did after learning of Ginsburg’s death was to call every member of his caucus, in order to make an assessment about whether it would help or hurt his members to force a Supreme Court confirmation vote. On Friday night, he also issued a thinly veiled warning to his caucus members to shut up, or, as he put it, “be cautious and keep your powder dry.” According to the Washington Post, which obtained a copy of the McConnell letter, he warned, “For those of you who are unsure how to answer, or for those inclined to oppose giving a nominee a vote . . . this is not the time to prematurely lock yourselves into a position you may later regret.”
Keeping the Republican senators in line was also among the top concerns McConnell had when Antonin Scalia unexpectedly died, in February, 2016. McConnell immediately coördinated with Leonard Leo, then the executive vice-president of the powerful conservative legal group the Federalist Society, to plot a path forward that would avoid what Leo reportedly called “a cacophony of voices.” To keep control, they came up with a plan. Although eleven months remained in the President’s second term, McConnell immediately announced he would block a vote for any Obama nominee because it was an election year, and so he argued, “the American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” The speciousness was breathtaking. Since the nation’s founding, the Senate had confirmed seventeen Supreme Court nominees in election years. Moreover, the “American people” had made a choice—they had elected Obama. But, despite declaring themselves as conservatives who respect precedent, McConnell, in consultation with Leo, simply invented a new rule to cover their radical defiance of past precedents and accepted norms.
Facing the same kind of unconstrained power play by McConnell again, the Democrats have few procedural weapons at their disposal other than taking radical measures themselves. For more leverage, Brian Fallon, the executive director of Demand Justice, a liberal group, says that if McConnell forces a confirmation vote before the election, Democrats need to threaten to expand the size of the Supreme Court if they win control of the White House and Senate in November. He believes there may be support for this even from unlikely moderate Democrats, if McConnell tries to strong-arm a vote. Senator Tim Kaine, of Virginia, who is ordinarily a mainstream Democrat, has said he could support enlarging the court as a tactic, if the Republicans force a confirmation vote. The Democratic senator Ed Markey, of Massachusetts, and Congressman Jerry Nadler, of New York, have also embraced the idea. Fallon also suggested that if a Trump nominee has yet to be confirmed after the election, and if Biden wins the White House, he, as President-elect, should name his own nominee, creating a scenario in which there are two nominees backed by opposing parties simultaneously duelling for confirmation. The Democratic members of the Senate, he argues, should decline to attend any courtesy calls, or confirmation hearings meanwhile, for any lame-duck Trump nominee.
David Cole, the national legal director for the American Civil Liberties Union, also called on Democrats to fight rather than fold. He told me, “I think we should demand that the Senate respects her dying wish,” referring to a statement from Ginsburg released after her death by her granddaughter Clara Spera, which said, “My most fervent wish is that I will not be replaced until a new President is installed.” He argued that although what the Senate did to Garland “was wrong, if they have a shred of consistency, they should hold off until after the Inauguration. And if not, progressives should take to the streets.”
Ornstein foresees the potential for a historic political rupture if Trump, who lost the popular vote in 2016, and McConnell successfully seize a Supreme Court seat for a second time. “If McConnell gets away with this again, this will be a Court like none we have ever seen in our lifetime. We will be back to the pre-New Deal era,” Ornstein said, referring to one of the most conservative courts in the last century. He predicted, “If McConnell does this, it’s not just an act of hypocrisy, it’s one of the most dangerous breeches we’ve seen in our lifetime. There will be consequences. I think there would almost be revolution in this country.”
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have never been as disgusted with our politics, and with my profession, as I was this weekend.
