I am contemplating the RBG news from my window ledge. Hey, its first floor, so its really only the shrubs we need to worry about.
Ross Douthat explains why the Republicans are likely to just go for it and seat a third Trump judge. (He does not say "Effin' go for it!", but he might have!). His gist - from a conservative's perspective the Supreme Court has had a legitimacy problem since Roe v. Wade in 1973. The Republican Establishment has had a festering legitimacy problem developing over decades of "Republican" judges drifting left, like Souter, Kennedy and Breyer. With that background, if they hesitate a few steps short of the finish line and look for some vague pre-election Democratic promises of Supreme Court "reform" , the party is over:
But that [promises of high minded reform] might be an idealist’s fancy. Suppose that Ginsburg isn’t replaced this fall, Biden is elected, and he fills her seat and then replaces at least one conservative justice as well, flipping the court back to liberal control. The Democratic incentive to reform our juristocracy would diminish or evaporate, and liberalism’s self-understanding as the party of hyper-educated mandarins would come back to the fore, making progressives enthusiastic about judicial power once again.
Meanwhile, conservatives would have all of their suspicions about establishment Republicans confirmed yet one more time, and they could add the Supreme Court to the lengthening list of elite institutions in which cultural liberalism’s power seems more consolidated every day.
The likely result would be a right-wing coalition that’s angrier and Trumpier than the G.O.P. that nominated Trump himself four years ago. So our imagined Republican senator’s reward for his high-minded vote could easily be a longer-term defeat for moderate conservatism: The judiciary would be handed over to ambitious liberals, and his own party would become more populist, paranoid and hostile to any form of compromise.
Sometimes you just have to keep throwing punches:
Of course I am speculating, but my point is to suggest the inherent unknowability of some “what’s best for the republic” outcome as our Republican senator contemplates his vote. It might be that a high-minded renunciation of power saves us from a crisis … but it might just as easily be that the only way out of the crisis is through, meaning for both sides to contest frankly for the power to change a broken system, and to look for new norms on the other side rather than propping up old ones that clearly don’t work anymore.
I'm leaning towards "fine, fight on!". And of course Trump is - he loves a brawl, never saw a scuffle he couldn't escalate, and may have reached peak popularity with the Never-Trumpers during the Kavanaugh imbroglio. If I were a Republican strategist, would I want to spend six weeks debating COVID or RBG? It's a no-brainer. Do unto others before they do unto you, amirite? And Cocaine Mitch tied the 2016 and 2018 elections to the Supreme Court, and came up a winner each time. I don't see a prospect for peace for out time.
That said, as an example of high-minded compromise, the invaluable (and clearly shaken) David French offers this suggestion.
What can be done? An increasing number of center-right legal scholars, including the American Enterprise Institute’s Adam White and George Mason Law School professor Ilya Somin are proposing a variant of an approach best summed up as “make them keep their word.” It goes something like this:
First, Trump makes his pick.
Second, the Senate applies the Schumer principle and gives the nominee a hearing. This will have the benefit of giving the American people a more-complete picture of the qualifications and philosophy of the nominee and thus the stakes of the presidential election.
Third, the Senate then applies the Graham/Rubio/Cruz rule and does not vote before the election. If Trump wins, they then vote on the nominee.
But what if Trump loses? What principle comes into play? Joe Biden’s own words provide the guide.
In the October 2019 Democratic debate, Joe Biden clearly expressed his opposition to court-packing. “I’m not prepared to go on and try to pack the court,” he said, “because we’ll live to rue that day.” He continued, “We add three justices. Next time around, we lose control, they add three justices. We begin to lose any credibility the court has at all.”
He’s right. Court-packing is dangerous. Yet if the GOP violates its principles to jam through a nominee in Trump’s last days in office, the pressure from congressional Democrats to pack the court may well be overwhelming. So Biden should make a deal with the lame-duck Senate. Keep the seat open, and he’ll pledge not to sign any legislation packing the Supreme Court while he’s in office.
A promise - pardon me, "pledge" - from Joe Biden? Frankly, I don't think for a second there is enough trust on either side to make it work, and Trump is the one guy committed to screaming matches.
We're just going to do this. And to be honest, although I feel as if I'm ODing on history right now, the "Hmm, Can This Really Burn Down?" side of me is kinda fascinated. Maybe I should try watching NASCAR for the crashes or hockey for the fights.
Recent Comments