Supreme Court Justice Ruth Bader Ginsburg has died. There is almost no time to mourn her, though her legacy as a liberal stalwart on the court, and as a pioneer for women's rights, deserves to be honored at length and in depth. Her passing means that American democracy — which is already at a tested and terrible moment in 2020 — faces a new challenge.
It may be too much.
Republicans are almost certain to try and get her successor appointed and approved before the election, or at least before Joe Biden is inaugurated, should he win. They will do so even though, when Justice Antonin Scalia died in February 2016, Senate Majority Leader Mitch McConnell (R-Kentucky) used the then-forthcoming presidential election as his excuse not to confirm — or even hold hearings — on Merrick Garland, President Obama's appointment to replace Scalia. Donald Trump won the election, and appointed Neil Gorsuch instead.
"Of course," McConnell said in 2016, "the American people should have a say in the court's direction. It is a president's constitutional right to nominate a Supreme Court justice, and it is the Senate's constitutional right to act as a check on the president and withhold its consent."
McConnell's views had changed, of course, by earlier this year, when it appeared that Ginsburg might pass.
"If you're asking me a hypothetical ... we would fill" the seat, he told Fox News in February. Friday night he confirmed his position in a statement, "President Trump’s nominee will receive a vote on the floor of the United States Senate." There are no precedents to be observed anymore, no rules to follow. Power is the last remaining principle. Those who do not have that power can be expected to object.
Senate Democrats will almost certainly do everything they can to stop any nominee Trump names. But it also seems certain there is nothing they can do to stop that nominee, either: Republicans used the so-called "nuclear option" in 2017 to get rid of the filibuster for Supreme Court nominees. Democrats, the minority party in the Senate, probably can only sit and watch while that nomination sails through the chamber.
The streets will be a different question. Left-of-center activists, haunted by the prospect of a conservative supermajority on the Supreme Court, can be expected to protest nationwide. Conservatives will probably meet them there. Tensions will run high. The summer of unrest in the wake of George Floyd's death in Minneapolis may prove to be just a prelude to the disturbances to come.
Three other observations about the fallout from Ginsburg's passing:
* If and when Trump's nomination is approved, you can expect Democrats to increasingly advocate "court packing." The idea of increasing the number of justices on the Supreme Court in order to create a liberal majority has gained traction on the left in recent years. After all, if Republicans keep changing the rules for nominees to give themselves an advantage on the court, why shouldn't Democrats? "Democrats need to start issuing threats to make their counterparts understand there will be no more unilateral surrenders in the court wars," my colleague David Faris wrote last year. "If the GOP is determined to press its advantage to the very boundaries of constitutionality and decency, Democrats must be willing to entertain similarly transgressive, yet perfectly legal, maneuvers."
Court-packing is probably a temporary solution, at best. It requires Democrats winning both the presidency and the Senate in November. Even if that happens, though, you can expect Republicans to pack the court even more whenever they regain control of government — which will happen sooner or later. Reasoned and principled arguments in favor of packing, though, will probably increasingly find support among Democrats.
* Ginsburg's death may strengthen Trump's case for re-election among conservatives. It is impossible to believe there are many swing voters left in this election — who doesn't have a hard-and-fast opinion about President Trump by now? But many believe Scalia's death in 2016 helped bring aboard then-wavering conservatives to support Trump's election that year. "I believe if Justice Scalia had not passed away when he did, there's a very good possibility Hillary Clinton would be president of the United States right now," Sen. Ted Cruz (R-Texas) said in 2018.
Trump's conservative support seems more-firm this time around — thanks in part to his appointments of Gorsuch and Brett Kavanaugh to the Supreme Court — but the court issue might bring in a few stragglers: Danielle Pletka of the American Enterprise Institute didn't vote for Trump in 2016, but she wrote this week she might support him this year — and cited Democratic "court packing" proposals as a factor.
* There will be no "balls and strikes" appointments this time. Supreme Court Chief Justice John Roberts famously likened his job to that of a neutral umpire during his 2005 confirmation. Conservatives have made it clear they have no use for that approach: Sen. Josh Hawley (R-Mo.) recently said he won't vote for any nominee who won't say, on the record, that Roe v. Wade was "wrongly decided." Hawley, of course, was then named — along with Cruz — to President Trump's latest shortlist of possible Supreme Court nominees earlier this month. The days of nominees pretending they have no opinion on abortion, and of senators pretending they believe the nominees, are almost certainly over.
Ginsburg deserves more of a mourning than she is going to get. Circumstances require pivoting immediately to the future, however. The future of American government — and of the American people's acceptance of the legitimacy of that government — was already on shaky ground, with growing questions about President Trump's apparent willingness to delegitimize any election result but his own landslide win. These are already difficult and scary times. Now they seem certain to get worse.