It took less than 90 minutes after the death of Supreme Court Justice Ruth Bader Ginsburg on Sept. 18 for Senate Majority Leader Mitch McConnell to affirm that he planned to push Donald Trump’s nominee onto the court as soon as possible.
Trump says Republicans need to rush a new justice onto the Supreme Court before the election because he expects the court, with another right-wing vote to reinforce the conservative bloc, will help him steal the election despite his trailing in polls that portend defeat if mailed-in ballots are allowed to be counted.
“Now we’re counting on the federal court system to make it so that we can actually have an evening where we know who wins. Not where the votes are going to be counted a week later or two weeks later,” Trump said at a rally in North Carolina Sept. 19.
Trump and Republicans have accused Democrats of planning election fraud by voting by mail during a pandemic, when many jurisdictions have cut polling places. There is little evidence that voting by mail contributes to fraud. In fact, Trump has voted by mail and is expected to do so in this election. But Republicans don’t want to make it easier for Democrats to vote in these pandemic days, particularly when Republicans appear headed for a thrashing. So Republicans set about to sabotage the US Postal Service to reduce confidence that mailed ballots will make it to election officials in time.
The death of Ruth Bader Ginsburg was a blow, because it opened the possibility that Trump would get to replace her with a third right-wing justice on the Supreme Court. Republicans have abandoned the pretense that they should leave the filling of a Supreme Court vacancy this close to the election to the next president, as they solemnly claimed in 2016.
After Justice Antonin Scalia died in February 2016, McConnell said President Barack Obama shouldn’t even bother to nominate a replacement in an election year. After Obama went ahead and nominated Merrick Garland, the respected chief judge on the D.C. Circuit Court of Appeals in March 2016, eight months before the election, Republicans denied a hearing, agreeing with McConnell that it was too close to the election.
Sen. Chuck Grassley of Iowa, who was chairman of the Senate Judiciary Committee in 2016, defended the rebuff then and reiterated his position this past July, “If I were chairman of the committee and this vacancy occurred, I would not have a hearing on it because that’s what I promised the people in 2016.” But on Sept. 21, he buckled, and said he would support McConnell’s decision to move forward to fill the vacancy before the election.
Sen. Lindsey Graham of South Carolina, the current Judiciary Committee chair, said in 2016, in defending the rejection of Garland, the rule against seating new Supreme Court judges in election years should apply to Republican presidents, too. “I want you to use my words against me,” Graham said in 2016. “If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said ‘Let’s let the next president, whoever it might be, make that nomination.’”
Trump explained the new rule on Fox “News”: “When you have the Senate, when you have the votes, you can sort of do what you want as long as you have it.” Pretty much the same as the old rule.
If Democratic Leader Charles Schumer can keep all 47 of the senators in his caucus in line, he would need four Republican senators to join the Dems in stopping a Supreme Court promotion this year, but only Sens. Lisa Murkowski (R-Alaska) and Susan Collins (R-Maine) have come out against filling the seat until after the election and, if Biden wins, they would let him name the new justice.
Democrats should play hardball in the showdown over the replacement of RBG.
McConnell might be able to marshal the votes to confirm the sixth conservative for the high court, and form a bloc on the high court that Republicans hope will impede progressive legislation for a generation, but Democrats must play their own strong hand, redoubling efforts to not only beat Trump, but also regain a Senate majority.
Sen. Ed Markey (D-Mass.) called for Senate Democrats to eliminate the filibuster if Republicans move to expand conservative majority on the Supreme Court by filling the vacancy.
“Mitch McConnell set the precedent,” Markey said. “No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”
Joe Biden is not promoting that alternative, but Josh Marshall, editor of Talking Points Memo, noted, “It is probably politically best that he not do so. Clearly the very idea of it cuts against every bit of his experience. But he also mustn’t rule it out. The optimal position for him is to focus on the wrongness of another corrupt nomination and say he hopes the President doesn’t force a future Democratic Senate to do so.”
Schumer said Democrats should keep all possibilities “on the table.”
Some Democrats are wary that threatening to expand the court will make the final month of the election a battle over abortion rights, but you can bet abortion opponents already are planning to vote for Trump. But Democrats should raise the alarm that a 6-3 conservative court is likely to overturn the Affordable Care Act in its entirety, including the requirement that insurance covers pre-existing conditions. The conservative bloc might be emboldened to overturn Medicare, Medicaid and even the 85-year-old Social Security Act, which Trump already is trying to defund through his own executive orders suspending the payroll tax that fund the retirement plans.
If Republicans achieve their dream of overturning Obamacare during the lame duck session, Democrats should get the gumption to expand the court in February with four more liberal justices who will go along if Congress decides to expand Medicare to cover everybody. A new Democratic Congress could remove the ceiling on payroll tax collections (which now stop after $137,700 in earnings). That will prevent the Social Security fund from becoming insolvent in 2035 and also allows expansion of benefits. With a liberal court majority, Congress also can restore the Voting Rights Act and reverse the Census-rigging that the Trump administration has been attempting to enable another decade of Republican gerrymandering.
Republicans will screech that Democrats are trying to pack the court, but Congress has changed the size of the Supreme Court seven times, from the original six justices to as many as 10 in 1863. After the Civil War, Congress in 1866 reduced the number of justices to seven to prevent President Andrew Johnson from appointing new members to the court. In 1869, after Johnson left office, Congress raised the number of justices back to nine, which the court has numbered ever since.
During the Great Depression, conservatives on the court struck down several New Deal programs during President Franklin D. Roosevelt’s first term. After his sweeping re-election in 1936, Roosevelt proposed in 1937 that Congress increase the number of judges to as many as 15 members. FDR relented when one of the justices moderated to allow the laws to take effect, and another conservative judge retired, prompting a humorist to quip, “A switch in time saved nine.”
Maybe it’s time for another switch. — JMC
By the way, press critic Eric Boehlert has noted, in his Press Run newsletter, that more than 100 of the nation’s newspapers called for Bill Clinton to resign because he lied about an extramarital affair, but none have called for the resignation of the Great Misleader, Donald Trump. For the record, Trump should quit, or be fired.
From The Progressive Populist, October 15, 2020
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