New Article: The Trump-McConnell Confederate Death Train Runs into RBG
David Shasha
The Trump-McConnell Confederate Death Train Runs into RBG
Before we get to the contentious issue of the Supreme Court vacancy that has been opened by the death of Ruth Bader Ginsburg, let it be said without hesitation that the current iteration of the Republican Party is Pro-Death.
We have seen over 200,000 of our fellow American citizens die of the Trumpvirus:
https://apnews.com/f270cedfb00c75ac18351e3cecc0eee3
Lysol does not care:
Yet the grim milestone and the prospect of more American deaths to come have prompted no rethinking from the president about his handling of the pandemic and no outward expressions of regrets. Instead, Trump has sought to reshape the significance of the death tally, trying to turn the loss of 200,000 Americans into a success story by contending the numbers could have been even higher without the actions of his administration.
The Murderer-in-Chief told Bob Woodward in July that he believes he should get a grade of A for his expert handling of the Coronavirus:
Indeed, he further believes that if he gets his phantom vaccine, he should get an A Plus!
It is all part of the Magical Thinking that characterizes the Republican Death Cult:
https://www.cnn.com/2020/09/07/health/trump-vaccine-timeline/index.html
Trump’s bedroom partner Mitch McConnell has held off on a second round of financial assistance to help those who have lost their jobs and whose material lives have been made insecure by the Trumpdeath:
McConnell must be watching the long lines at food banks with glee:
Because he now has the chance to pack the Supreme Court with another Pro-Death justice:
https://slate.com/news-and-politics/2020/09/ruth-bader-ginsburg-death-mitch-mcconnell.html
Indeed, the Republican Death Cult was positively overjoyed to hear of RBG’s passing on the Rosh Hashanah holiday:
https://www.newsandguts.com/rep-doug-collins-chastised-for-celebrating-ruth-bader-ginsburgs-death/
We must of course point to the infamous “McConnell Rule,” which requires that all Supreme Court nominees be held off during an election year:
It might be that Alan Dershowitz is advising McConnell and the Republican Death Party, as we have seen a novel PILPUL being peddled:
https://www.axios.com/cruz-election-year-scotus-ad1f371e-4547-4496-81d2-cdb895302325.html
Ted Cruz, a Dershowitz protégé, has the full TOSFOS down cold:
Cruz said the circumstances are different now because Republicans control the Senate and the White House, whereas Democrats were in the minority when former President Obama nominated Garland.
Rabbenu Tam world have been proud!
Now we have all the Republicans reversing their position on whether a Supreme Court nominee can be confirmed before an election:
It is yet another opportunity for Trump to rig the election, as he looks to a possible 2020 version of Bush v. Gore; another chance for the Supreme Court to install a Republican loser:
The late Ruth Bader Ginsburg represented the Progressive wing of the Democratic Party, and we can point to a number of critical issues that animate the contentious debate between Left and Right: Abortion, Gay Rights, Health Care, and Labor laws.
Since the election of Ronald Reagan, the Republican Death Party wants Abortion outlawed outright:
https://pubmed.ncbi.nlm.nih.gov/8274866/
And let it be said here, in case there is still some Jewish confusion about it, the Talmud establishes the legal beginning of human life from thirty days after birth:
https://www.myjewishlearning.com/article/the-beginning-of-life-in-judaism/
Abortion remains a complex issue in Judaism, but it is permitted under specific circumstances:
https://www.myjewishlearning.com/article/abortion-in-jewish-thought/
There is no blanket prohibition on the procedure.
Next, we have the Gay Rights issue:
We should of course remember that Gay Rights does not in any way impact our Jewish laws, as it is a secular jurisdiction that does not impinge on our Religious Liberty:
https://groups.google.com/g/davidshasha/c/4m9Q8AonqKI/m/MGzcrSEjAQAJ
And then there is the ongoing Republican attack on Health Care.
Lysol has sought to eviscerate Obamacare and eliminate its protections for all Americans:
And finally, there is the ubiquitous Reaganite attack on Labor rights and Unions:
https://prospect.org/power/worker-s-friend-trump-waged-war-workers/
The Republican Death Party is out of step with America.
Three-quarters of Americans support Roe v. Wade:
A majority supports Obamacare:
https://www.newsweek.com/majority-supports-obamacare-trump-supreme-court-aca-1513583
That majority rises significantly on the issue of Pre-Existing Condition protections, which the Republican Death Party wants to smash:
https://www.kff.org/health-costs/poll-finding/kff-health-tracking-poll-april-2019/
A substantial majority supports Unions and Labor protections:
https://www.cnn.com/2019/08/31/us/labor-day-union-support-controversy-trnd/index.html
And Gay Rights as well:
https://news.gallup.com/poll/1651/gay-lesbian-rights.aspx
The Trump-McConnell Death alliance needs this SCOTUS PILPUL because America is against their 1%-Corporatist agenda.
They have sought to rig the system by appointing Federalist Society judges and redistricting areas of the country to get their radical nihilists elected:
https://www.americanprogress.org/issues/democracy/news/2019/04/03/468234/conservative-court-packing/
And while we are now focused specifically on SCOTUS, much damage has already been done to the Federal bench that cannot easily be undone:
An important recent case of note was the Pennsylvania ruling that lockdowns are unconstitutional:
Indeed, elections have consequences.
It is important here to note the non-Republican constituencies who helped elect Trump in 2016; allowing their ideological biases to deny Hillary Clinton the presidency.
The first, and perhaps most important, are the enemies of “Lesserism”:
Since 2016 the Hate America Leftists have consistently attacked the binary choice presented by our Two-Party system:
There’s probably never been a US presidential election where both likely nominees are more despised by more people. Millions on both sides plan to vote for the least despicable candidate. Do you need more proof our political system is corrupt to the core? If you’re a Hillary Clinton supporter and plan to vote for her, that’s fine. But Bernie Sanders supporters are being pressured and shamed into voting for Clinton. This “pragmatic” lesser of two evils tactic may work for the short term, but it will just embolden establishment politics and undermine future chances for real progressive change.
Even if your vote helps defeat Trump you’re clearly telling Democratic party elites they can confidently betray your concerns as long as they offer you someone marginally better than the Republican alternative. Where will it end? The Democratic Party will just continue to betray progressive causes with impunity. Progressives should say enough is enough and put moral principles above short-term political expediency.
The Democratic Party elites are going out of their way with all manner of dirty tricks to stack the deck for Clinton. They’re counting on Sanders supporters to “feel the guilt” if they dare to not vote for their chosen one. But if Trump wins, it won’t be the fault of Sanders supporters voting their conscience. It will be the fault of party elites trying to force an establishment faux progressive down the throats of true progressives knowing full well their choice will alienate millions of progressive Democrats and independents while bringing Trump supporters out in droves.
That leads to Bernie Sanders and his tepid “endorsement” of Mrs. Clinton:
https://www.kansascity.com/news/politics-government/article89085587.html
As we can see, the Sanders supporters were not at all keen on voting for Clinton, and in the end helped to swing the victory to Trump:
“Lesserism” also feeds into the new Black Separatism of Ta-Nehisi Coates and Wakanda fantasy politics:
It is an idea that sets into relief the very important fact that many young people do not vote:
https://theconversation.com/why-so-few-young-americans-vote-132649
Young people may not want to vote, but the decisions of SCOTUS will have a profound impact on their lives anyway.
And elections matter:
Perhaps those young people should take a look at the ages of the current justices and how long they will be dealing with them, as they worry about their student loans and a collapsing job market decimated by the Trumpdeath.
Rapist Kavanaugh, the latest Republican Death Cult appointment, will be serving for the next 40 years:
Just think of that.
But the young non-voters, Wakandists, and anti-Lesserists do not seem to think at all.
We will recall that it was Colin Kaepernick himself who proudly admitted to not voting in 2016:
We can ponder the possible effect of the many Black Lives Matter protests, but in the final assessment it is all meaningless if the Supreme Court is packed with White Supremacist pro-Police murder majorities.
We should also consider that SCOTUS does not currently have one Black justice:
Clarence “Pubic Hair on my Coke Can” Thomas has fought the Civil Rights advances with every bone in his House Negro body:
Thomas has been vilified by many in the intelligentsia for the entirety of his nearly 30 years on the Supreme Court. Time Magazine had once appallingly referred to him as “Uncle Tom Justice,” and the late political columnist Nat Hentoff opined during the early years of his service on the bench that Thomas had “done more damage, more quickly, than any Supreme Court justice in history.” But three decades is a long time, and it would be a mistake to underestimate his impact on constitutional law.
His most lasting influence is almost certainly going to be on civil rights law, something that is particularly important to note during Black History Month. In Missouri versus Jenkins, for example, Thomas became the first justice to directly criticize Brown versus Board of Education. Although he called state mandated segregation “despicable,” Thomas said that the Supreme Court was wrong to rely on debatable and disputable social evidence to declare segregation unconstitutional rather than invoking the “constitutional principle” that the government “must treat citizens as individuals, and not as members of racial, ethnic, or religious groups.”
His conception of civil rights as an individual, not a group, right also explains his approach to voting rights. In Holder versus Hall, he wrote that racial groups should not “be conceived of largely as political interest groups,” that African Americans do not all think alike, and that existing case law should be overturned to eliminate claims for “proportional allocation of political power according to race.” He echoed these views in several subsequent cases, including Northwest Austin Municipal Utility District Number One versus Holder and Shelby County versus Holder.
He benefitted handsomely from Affirmative Action, which he is now against:
He is quite arguably the most unqualified justice in the history of the Court:
Race Traitor Thomas sits alongside Samuel Alito, Neil Gorsuch, John Roberts, and Rapist Kavanaugh, all proud White Christian men, in what is also arguably the most radical realignment of the Court in its history:
They have effectively shredded the Constitution and our most basic Civil Rights:
https://slate.com/news-and-politics/2020/04/john-roberts-court-will-not-ensure-right-to-vote.html
What they need now is a White Christian woman to add to their Death Cult mayhem:
https://www.cnn.com/2020/09/20/politics/trump-supreme-court-woman-nominee-2020/index.html
Maybe it will be Amy Coney Barrett, the anti-RBG:
https://www.nytimes.com/2020/09/20/us/politics/supreme-court-barrett.html
She has passed the Lysol litmus tests with flying colors:
The nomination of a judge whom Mr. Trump was quoted last year as “saving” to be Justice Ginsburg’s replacement would almost surely plunge the nation into a bitter and divisive debate over the future of abortion rights, made even more pointed because Judge Barrett would replace a justice who was an unequivocal supporter of those rights. That is a debate Mr. Trump has not shied away from as president, as his judicial appointments and efforts to court conservatives have repeatedly shown.
Liberal groups have been sounding the alarm over Judge Barrett for two years because of concerns over how she might rule on abortion and the Affordable Care Act.
“Amy Coney Barrett meets Donald Trump’s two main litmus tests: She has made clear she would invalidate the A.C.A. and take health care away from millions of people and undermine a woman’s reproductive freedom,” said Nan Aron, the president of Alliance for Justice, a liberal group.
Though I would suggest Stormy Daniels:
https://www.businessinsider.com/who-is-stormy-daniels-porn-star-affair-donald-trump-2018-1
She fits the Trump Porno legal angle to a T!
And I am sure Long Dong Silver Thomas would just love it:
https://abcnews.go.com/Politics/justice-clarence-thomas-lover-speaks-tv-interview/story?id=11950662
Given the current Right Wing composition of the Court, it is therefore amazing to read Ross Douthat’s hysterical column on the RBG matter:
https://www.nytimes.com/2020/09/20/opinion/republican-supreme-court.html
The complete article follows this essay.
According to him there has been no Conservative Revolution in our jurisprudence:
And our Republican senator knows that this feeling has sustained itself because the conservative effort to change the courts was balked and limited, over and over again, despite many seemingly no-doubt electoral victories and sweeping presidential mandates. For decades, conservatives elected Republican presidents, Republican presidents appointed Supreme Court justices — and yet about half of those justices turned out to be either outright judicial liberals or “swing” votes who always seemed to swing toward social liberalism.
Using the very clever theoretical device of imagining what a current Republican senator might do with the RBG replacement nomination, Douthat lays out his grievance-laden case:
And our Republican senator knows that this feeling has sustained itself because the conservative effort to change the courts was balked and limited, over and over again, despite many seemingly no-doubt electoral victories and sweeping presidential mandates. For decades, conservatives elected Republican presidents, Republican presidents appointed Supreme Court justices — and yet about half of those justices turned out to be either outright judicial liberals or “swing” votes who always seemed to swing toward social liberalism.
Douthat reveals himself as anti-Democratic, as he fixates on the social issues that have led to great advances in personal liberties and Civil Rights, pretending that America remains a country of White Christian privilege which would deny many citizens their rights and freedoms:
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.
He then implicitly threatens Trumpist violence if he does not get his Ratzinger way:
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.
I remain convinced that the Reagan Right, of which Douthat is a part, remains oblivious to its massive power; asserting that nothing has changed and that America is dominated by Liberal elites. It is the inverse image of the Hate America Leftists who think that no progress has been made from the Progressive side.
It appears that these revanchist Conservatives will not rest until all those advances have been fully reversed.
As I have repeatedly said, Douthat is a deeply troubled man who is really not sure whether he supports Trump, or whether he does not. The RBG vacancy has set off his confusion in an even more extreme manner than before.
Finally, as we ponder how we got into this mess in the first place, we must unfortunately point to Ruth Bader Ginsburg herself:
https://slate.com/news-and-politics/2020/09/ruth-bader-ginsburg-retirement-question.html
In the coming days we will rightly hear many arguments about how she should have retired and allowed Barack Obama to replace her with a younger justice.
Indeed, those of us on the Liberal side have been worrying about her health for some time now:
She knew the chance she was taking, and we are now paying the price for it.
But, as I have written in a brief article on CNN’s “RBG” documentary, the cult that surrounded her grew to absurd proportions, and power is a very intoxicating thing:
https://groups.google.com/g/davidshasha/c/ITT8q3OMZyk/m/gfE0SoEYBgAJ
Here is what I said there:
Sadly, the movie is too much slanted to the stultifying “Notorious R.B.G.” cult, and too little a serious examination of the intellectual history and social context of its protagonist. There is too much novelty and ephemera and too little serious discourse on the doggedly wonky RBG legal process.
Perhaps if the young people who do not vote had a better understanding of the career struggles of RBG, and the Black Separatists appreciated her gradualist approach, which she shared with Thurgood Marshall, and the anti-Lesserists accepted that elections have real consequences, they would not be so callous at such a trying time for the country and for the world.
Idealism is a luxury in the face of the massive re-alignment that has been taking place since Reagan’s so-called Moral Majority and the emergence of the Federalist Society and Koch Brothers as malignant power brokers in our politics:
https://www.sourcewatch.org/index.php/Federalist_Society_for_Law_and_Public_Policy_Studies
The Kochs helped bankroll ALEC, the American Legislative Exchange Council, which has had a hand in a good deal of political malfeasance and corruption:
https://www.politico.com/story/2015/07/alec-koch-brothers-dark-money-anonymous-donation-120784
This is exactly what the Swamp looks like – and the Swamp is Trump:
https://thehill.com/opinion/white-house/481407-trump-is-flooding-the-swamp-that-obama-drained
The epic corruption brings to mind Frank Capra’s classic 1941 movie “Meet John Doe”:
https://groups.google.com/g/davidshasha/c/lXNFL3SS14A/m/rjDQf2f_CAAJ
Understanding the dire nature of the threat means that we clearly see what has been lost, and what needs to be done to rebuild our defenses. It is now over forty years since the Right Wing Reagan transformation, and the Far Left has proven itself to be more delusional and less pragmatic than ever.
It is a process that began with the Counterculture and its “revolutionary” tendencies:
As we read there:
It is the extremes that stand out most starkly today. "The Left blazed through the Sixties like a meteor, reshaping the cultural landscape, particularly in the areas of gender and race," historians Maurice Isserman and Michael Kazin wrote in America Divided: The Civil War of the 1960s. Meanwhile, they add, "the Right established itself as a unified and potent political movement during the same decade." Much has been made of the left's impact, but conservatives planted seeds for the future, too. The right's goals included preserving social and moral order; promoting "traditional values," such as family, patriotism, and the work ethic; and encouraging self-reliance, distrust of government, and a tough stand against communism or international wrongdoers. Those sentiments still inform and animate conservatism today.
The revolutionaries and separatists continue to seek change outside the political system, as the Right Wing enemies of Liberty work methodically to control that very system from within:
https://www.politicsnc.com/the-rotten-fruit-of-the-reagan-revolution/
It is true that the two Democratic presidents since Reagan have done little to stem the stench of that rotten fruit:
https://en.wikipedia.org/wiki/New_Democrats
But rather than taking a lesson from the Hard Right, which rebuilt itself in the 1950s and 60s, the current version of the Countercultural Left remains mired in its delusions.
And that brings us back to Moscow Mitch and RBG.
It is certain that Lysol will nominate a Far Right whackjob, as he has done twice already. It is just as certain that McConnell will be ramming through confirmation hearings ASAP, though it is uncertain whether he will have the votes to push the nominee through.
He will likely hold the vote after the election during the Lame Duck session, and install a Right Wing radical on the Court to replace a Liberal Progressive; reminding us of George H.W. Bush’s move to replace NAACP saint Thurgood Marshall with Uncle Tom Thomas:
https://www.history.com/this-day-in-history/thomas-confirmed-to-the-supreme-court
What will happen in the upcoming election is an unknown, and it is altogether possible that vulnerable Republicans will lose their seats and shift the Senate back into Democratic hands.
Such a power shift would allow a Democrat majority to, as it is being mooted, expand the number of Supreme Court justices to replace what has been stolen from them:
https://www.motherjones.com/politics/2020/09/democrats-really-might-try-to-pack-the-courts/
It is a deplorable process that began long before Donald Trump took office, as the Religious Right and radical Free Marketers planted the seeds for a radical re-ordering of our democracy; as they, pace Douthat and his very angry Religious Fundamentalist allies, want to roll back the many gains in Civil Rights that have been fought for with the blood of many activists who did not give up on our political system.
Charles Blow properly summed it up in his RBG column:
As he correctly said:
This is all about power for a group of people who feel their grip on power slipping away.
They are trying to reshape the courts for a generation, if not longer, so that as their numerical advantage slips away, their power imbalance will have already been enshrined. As America becomes less religious and less white, more galvanized to fight climate change, more open to legalizing marijuana and more aware of systemic racism, the religious conservative spine of the Republican Party is desperate for a way to save a way of life that may soon be rendered a relic.
According to the Pew Research Center, 78 percent of white evangelical voters are Republicans or lean Republican. So are 62 percent of white men without a college degree, 60 percent of rural southerners and 57 percent of people who attend religious services weekly.
Many of those demographics are under threat. The United States will be majority-minority by 2045 and by 2060 there will be nearly as many Hispanic children in the country as white ones.
So, we must insist that Ruth Bader Ginsburg not become a hollow celebrity icon.
As I wrote in my article on the “RBG” documentary, it is the substance of her work as a tireless defender of the disenfranchised that we must remember:
… “RBG” provides us with a view – albeit a sometimes very superficial and glossy view – of a very important American jurist who should be known as something more than a celebrity t-shirt icon.
The documentary touches on important cases that Justice Ginsburg argued before the Supreme Court when she was a lawyer working in the Women’s Rights movement in the 1970s.
It vigorously makes the argument that she was as important for Feminism as Thurgood Marshall was for Civil Rights.
Sadly, the movie is too much slanted to the stultifying “Notorious R.B.G.” cult, and too little a serious examination of the intellectual history and social context of its protagonist. There is too much novelty and ephemera and too little serious discourse on the doggedly wonky RBG legal process.
And it is in the doggedly wonky legal process, where the unglamorous work of the activist is actually done, that our country will ultimately emerge victorious from the depredations of the Trump era.
It is not clear where things will go from here, but it is clear that if we are to save America from those who would destroy it, we must roll up our sleeves and put our nose to the collective grindstone and work for a better future.
Just hoping things will change for the better will not make it so.
To quote Emerson: “Wherever work is done, victory is
attained.”
David Shasha
How the G.O.P. Might Get to Yes on Replacing Ruth Bader Ginsburg
By: Ross Douthat
Imagine a Republican senator uncertain whether to vote for the Supreme Court nominee that President Trump is poised to put forward. He is part of a select group, our senator; perhaps we can even guess how many children and grandchildren he has, how steeply his hair still rises from his brow, how close he once came to being president himself.
Here is how he might consider the problem. On the one hand there is the threat of what keeps being called a “legitimacy crisis” should Ruth Bader Ginsburg, who died on Friday, be quickly replaced by a conservative jurist. It would be Donald Trump’s third appointment following a presidential election in which Senate Republicans declined to vote on Barack Obama’s final nominee. Trump did not win the popular vote in 2016; his Senate coalition doesn’t represent a popular majority. In replacing Ginsburg he would be altering the balance of the court more decisively than with his previous picks, both of whom took seats from Republican appointees.
And he would be doing so in a country that’s already polarized, maddened, suffused with hysteria. The madness around Supreme Court battles has been building steadily since Robert Bork’s defeated nomination in 1987, and at some point it has to be defused. If someone — which means some Republicans, at the moment, because the power is in their hands — doesn’t find a way to de-escalate, to concede some ground, then the court and even the Constitution could be in the gravest sort of peril.
That’s the situation as understood on the left and much of the center. But our senator is a Republican senator, mindful of his own coalition’s views. He knows there is more than one way for an institution to lose legitimacy, and that for many conservatives the high court eviscerated its own authority decades ago, when it set itself up as the arbiter of America’s major moral controversies, removing from the democratic process not just debates about sex and marriage and school prayer but life and death itself.
Those “many conservatives” include this columnist. Since I became opposed to abortion, sometime in my later teens, I have never regarded the Supreme Court with warmth, admiration or patriotic trust. What my liberal friends felt after Bush v. Gore or after Brett Kavanaugh’s confirmation or in imagining some future ruling by Amy Coney Barrett, I have felt for my entire adult life.
And our Republican senator knows that this feeling has sustained itself because the conservative effort to change the courts was balked and limited, over and over again, despite many seemingly no-doubt electoral victories and sweeping presidential mandates. For decades, conservatives elected Republican presidents, Republican presidents appointed Supreme Court justices — and yet about half of those justices turned out to be either outright judicial liberals or “swing” votes who always seemed to swing toward social liberalism.
So if it seems unfair and delegitimizing to liberals today that a president without a popular-vote mandate should be able to appoint the successor to Ruth Bader Ginsburg, conservatives might respond by asking what democratic “fairness” delivered David Souter and John Paul Stevens to a combined 54 years on the court as Republican appointees? Or what “fairness” made Anthony Kennedy rather than Antonin Scalia the dominant judicial figure for the decades that followed Ronald Reagan’s presidential landslides?
And further, what would it say to the millions of voters who have supported the Republican Party almost exclusively because of judicial politics for decades, for a situation to come along where there is no constitutional bar to appointing Ginsburg’s successor, and then Republican senators simply cede the opportunity, extracting at most a vague no-future-court-packing promise in return? At least with Souter, the seat wasn’t ceded to liberals on purpose.
That’s what our senator encounters when he inclines his ear rightward. But if he has wisdom, he can also sense in the clashing arguments a substrate of agreement — a shared recognition that a system in which the great questions of our country are settled by the deaths of octogenarians is too close to late-Soviet Politburo politics for comfort, a shared acknowledgment that too much deliberation that belongs in other branches is being shunted to the Supreme Court.
The question is what, if anything, would need to happen to make that substrate the foundation for a better system, a decisive change in judicial appointments and a step back from juristocracy.
One answer, the “Mr. Smith Goes to Washington” answer, is that a brave stand in favor of bipartisanship by a few Republican senators might set the stage for a return of wise-man politics, in which various reforms proposed for the Supreme Court — shorter terms, rotating appointments, a larger bench appointed by bipartisan committee — could be pushed through by Republicans and Democrats together, in a Joe Biden presidency or thereafter.
The message of the stand would be, let’s not do this, but its goal would be to get both parties to say, let’s never get in this situation again.
But that 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.
Whereas if he voted to confirm, then the worst-case scenario, the threat that Democrats are waving, would probably be an attempt at court packing in a Biden presidency, or perhaps in a Kamala Harris presidency down the line.
Such a development would no doubt make Twitter unbearable and inspire Republicans to their own round of angst about legitimacy and norms. But once you recognize the current system’s brokenness, it’s not clear it would be all that terrible a fight to have.
For one thing, to fight a battle over the court on those terms would commit the Democrats decisively to the position that the courts should be under small-d democratic control, rather than allowing them to replace Ginsburg, breathe a sigh of relief and revert to a liberalism of philosopher kings (and queens).
For another, if an era of court packing tit-for-tat weakened the high court, making its members more cautious and its decisions appear more overtly political, then that could have one of two positive consequences: It could push some power back toward the legislative branch, where under our constitutional schema it still formally belongs, and it could eventually push the warring parties toward an exhausted stalemate, from which bipartisan court reform might be more likely to emerge.
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.
And the unknowability means that the decision is probably better reduced to its simplest form. All that our senator knows about this vote for certain is that it will give one of the (unfortunately) most powerful offices in America to either the person nominated or some person chosen by the current Democratic nominee.
If the person nominated seems like a better choice to be entrusted with that power, then despite all the atmospherics, there’s a clear case for voting yes.
From The New York Times, September 20, 2020