Screw You, 2020

 Ruth Bader Ginsburg's death is the calamity that we've all seen coming since Trump pulled off his inside straight in 2016. Should she have retired when she got her pancreatic cancer diagnosis? Obviously, in retrospect, but given that we've been dreading to see her name trending in the news for almost four years, I think everyone can acknowledge that she took a huge gamble of the extraordinary legacy that she built by staying on. 

The new saga will be whether Trump can replace her before he presumably loses his election on November 3rd. Of course, Neil Gorsuch is on the Court because Mitch McConnell said - in 2016 - that "we can't fill a Supreme Court seat in an election year."  This was, of course, bullshit, and McConnell has already committed to filling the seat. 

It's worth noting that McConnell's primary skill as a legislator is not his ability to actually pass legislation or get his caucus to unify around an unpopular position. He couldn't repeal the ACA. He has not been able to get another round of Covid relief passed. He is not, actually, very good at his job. Since pretty much all the Republicans in the Senate are on record as having supported keeping Merrick Garland off the bench in 2016, they will have to be exposed as - gasp - hypocrites, if they confirm someone between now and January 3rd, presuming Democrats win the White House and Senate.

In order to stop Trump and McConnell from filling the seat, Democrats will need four GOP Senators to break with their party and uphold the same "principle" that they expressed in 2016. So far, Lisa Murkowski is the firmest "no" vote on a new justice. Susan Collins has said she won't vote until we know who wins the November 3rd election for president, but I don't trust Collins very much. 

So who's left? Mitt Romney has been aloof from this issue, but he's a possible objection on principle and his deep antipathy for Trump. I think a Trumpist firebrand nominee would be a hard sell for Romney. Chuck Grassley has said he would not support confirming someone in an election year, and Grassley has enough gravitas to resist Trump. Cory Gardner is facing an almost certain electoral defeat so it's unclear whether he will abide by a concept of fair play or simply sell out. There are other Senate institutionalists like Lamar Alexander, Ben Sasse and Rob Portman - possibly Pat Toomey - who might also have qualms about such naked hypocrisy. There is also the potential that they could use the lame duck session after the election, but Mark Kelly - should he prevail the way polls say he will - can be seated immediately, as his is a special election.

The other issue is that if they pursue such a horrific double standard, it opens the door to Democrats adding 2-4 more justices to the Court. The number of Justices was last increased in the Grant administration for expressly partisan reasons, though FDR got pilloried for trying to increase the number of Justices, the landscape is quite different than it was in 1937. The Court is much more obviously a product of partisan politics and I think the Democrats could easily justify two more judges to replace Garland and Ginsburg. Whether they embrace four is another question.

Also, there is the nature of the Senate itself as a slow moving institution. There are many ways to gum up the works, but one in particular is interesting. Before considering any other business, the Senate must resolve any impeachment matters before them. Given that there are an almost endless number of Hatch Act violations in the Trump Administration, the House could literally send a new article of impeachment every three or four days to keep the Senate tied up. 

Republicans - especially the few non-crazy ones left - have a dilemma: Their party created a "rule" over Merrick Garland. If they violate this rule, then the Democrats can justify breaking any other norms and rules in order to rectify the situation. Do Mitt Romney, Pat Toomey, Ben Sasse and Lamar Alexander want to be co-conspirators in the destruction of the Senate as a deliberative body? If they support Trump in this, they will effectively do so.

Finally, there is the question of which side would be more animated to vote over this issue and why? Trump's base will crawl over broken glass to vote for him already, as we know. And the anti-Trump plurality will do the same to vote him out. Will the partisan shitshow over Ginsburg's successor turn them against Republican hypocrisy or will they vote against a Democratic party obstructing the president from appointing a justice? I'm guessing there are already pollsters trying to figure that out.

Democrats need to be clear that if the Republicans engage in naked partisanship - even more so than in 2016 - then there will be repercussions should Democrats win the trifecta in November.