America is running low on coronavirus testing supplies, jobs, competent political leadership, and social solidarity. But one thing Americans don’t have to worry about running out of in 2020 is a reason for anxiety.
This is especially true for American liberals. From blue America’s perspective, each day’s headlines seem to herald dystopia’s accelerating approach, as small businesses shutter, states go broke, the Post Office gets gutted, new viruses with pandemic potential get discovered, Antarctica’s ice sheets gently weep — and Ruth Bader Ginsburg is rushed to the hospital, over and over again.
But progressives may be able to cross off “RGB is going to pass away before November and be replaced with a 40-year-old Federalist Society theocrat (and/or QAnon blogger)” from their list of reasons for perpetual panic.
After Antonin Scalia’s death in 2016, Mitch McConnell infamously refused to dignify Barack Obama’s nomination of Merrick Garland with so much as a hearing. At the time, the Senate Majority Leader argued that confirming Garland in an election year would be undemocratic, as it would deny “the American people” a chance to “have a voice in the selection of their next Supreme Court justice.” But as Ginsburg’s health woes have fueled speculation about a potential vacancy in 2020, McConnell has refined this principle, explaining that it is only wrong to confirm a Supreme Court justice in an election year when the White House and Senate are controlled by different parties. Since the GOP holds both today, Republicans have a clear mandate from the American people to consolidate conservative dominance of the Supreme Court (never mind that the Republican president lost the popular vote in 2016, or that Americans delivered a historic landslide to Democrats in the last round of federal elections).
Speaking at a Chamber of Commerce luncheon last year, McConnell offered a more coherent rationale for his position. “Everything else changes,” the Senate leader explained, “what can’t be undone is a lifetime appointment to a young man or woman who believes in the quaint notion that the job of the judge is to follow the law.”
For this reason, Senate Majority Whip John Thune has said that Republicans would fill any Supreme Court vacancy that comes up between now and January 20, 2021, even if such an opening arrived after a Democratic victory in November.
But not everyone in McConnell’s caucus is onboard for such a power grab. And Democrats are warning that if the Senate Majority Leader breaks his own rule, he’ll find that his judicial legacy is more vulnerable to change than he’d wagered.
On Monday, Republican senator Lisa Murkowski said that filling a Supreme Court vacancy before 2021 would be “a double standard,” and she “would not support it.” Her GOP colleague Chuck Grassley, meanwhile, told NBC News that he also felt filling a vacancy would violate the party’s 2016 standard and that he “couldn’t move forward with it,” were he still the chairman of the Senate Judiciary Committee.
To be sure, moderate Republicans’ promises to stand their ground against partisan excess are an unreliable currency. And McConnell’s 53-seat majority gives him room to lose Murkowski, Grassley, and one more protest vote and still secure a justice’s confirmation (as Mike Pence would break any 50-50 tie).
But internal dissent isn’t the only hitch in McConnell’s plan for entrenching Republican dominance of the judicial branch. In the wake of Garland’s defeat, Trump’s victory, and the ensuing blitzkrieg of far-right judicial appointments, progressive groups began organizing behind judicial reform. Their efforts led multiple Democratic primary candidates to endorse adding justices to the Supreme Court. That idea remains a minority position within the party, but it is no longer an unthinkable one. If McConnell opted to use the Senate’s limited time and energy — in the middle of a pandemic — to race through the confirmation of a far-right Supreme Court nominee in brazen defiance of his own rationale for blocking Garland, there would no longer be a legitimate, independent judiciary for moderate Democrats to defend against progressive court-packing schemes; or so Tim Kaine is warning his Republican colleagues.
“We knew basically they were lying in 2016, when they said, ‘Oh, we can’t do this because it’s an election year.’ We knew they didn’t want to do it because it was President Obama,” Sen. Tim Kaine, D-Va., said in an interview.
Kaine, the party’s last vice presidential nominee and a lawmaker with a reputation as an institutionalist, said confirming a nominee of President Donald Trump this year could compel Democrats to consider adding seats to the high court.
“If they show that they’re unwilling to respect precedent, rules and history, then they can’t feign surprise when others talk about using a statutory option that we have that’s fully constitutional in our availability,” he said. “I don’t want to do that. But if they act in such a way, they may push it to an inevitability. So they need to be careful about that.”
This by itself might not stay McConnell’s hand. As the Majority Leader has explained, a Supreme Court justice is worth an awful lot. Given that it’s far from certain that Democrats will gain control of the Senate next year — let alone that a Democratic majority reliant on Joe Manchin and Kyrsten Sinema will have the votes to “pack the court” — McConnell might be happy to take his chances.
But the whole point of the GOP’s judicial project is to insure conservatives’ influence over federal policy against the long-term threat posed by the American public’s growing liberalism. And if the right’s Supreme Court supermajority is won through a process that even Chuck Grassley deems unseemly, it will be difficult for a reactionary high court to sustain its legitimacy as the millennial generation’s share of the electorate steadily grows. The fact that we are already at a point where Tim Kaine feels comfortable floating the threat of court-packing does not augur well for the long-term sustainability of using judicial power to shove conservative policy down the throats of a progressive majority. Which is to say: If the confirmation of conservative justice this year doesn’t provoke Democratic court-packing in 2021, it could result in California nullifying Supreme Court rulings by decade’s end.
So the next time you find yourself worrying about the health of Ruth Bader Ginsburg or Stephen Breyer, just remember that their deaths wouldn’t necessarily herald the end of Roe v. Wade — they might just herald the end of the United States!