The shockwave of Supreme Court Justice Ruth Bader Ginsburg's sudden and untimely death swept across the American left Friday night, leveling weekend plans and obliterating any hope of a relaxing evening. And of course, her death is a tragedy — the justifiably renowned Ginsburg had clung gamely to her seat throughout the Trump era, despite spiraling health problems, so that a Democrat might fill her seat sometime after he was ousted. But it was not meant to be. Her passing, instead, will inevitably set off an intense and ugly political battle as the November election approaches.
Yet when I read the news, I found myself feeling much more sanguine than many of my friends who were doom-scrolling and panic-texting me. Why am I not apoplectic? Ginsburg's death, while it should and will be mourned, makes nothing worse for Democrats. If anything, it puts Republicans in a serious bind and could create opportunities for structural reform that might have otherwise been unthinkable or unworkable.
Think of it this way: If President Trump is re-elected, this was going to happen anyway. I don't know anyone versed in actuarial realities who thought that Ginsburg would have survived another four years. And she's not the only elderly liberal on the Court — Stephen Breyer is 82, albeit in much better health. But these were always the stakes. If the American people give Trump another term, they are voting for a 6-3 or perhaps even a 7-2 ultra-conservative majority on the Supreme Court, one that could last decades. Ginsburg's death changes nothing about that calculus except to eliminate any lingering magical thinking about how the 5-4 conservative split could be preserved in amber until 2025.
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The reality is that Ginsburg's passing actually creates a trap for the GOP. With court-expansion gaining steam on the progressive left, the last thing that Republicans need right now is to be confronted with the rank hypocrisy of their decision to block Merrick Garland's nomination by Barack Obama in 2016. Four years ago, the GOP unified around an obviously sham rationale for stonewalling the Garland nomination — that Supreme Court vacancies shouldn't be filled in an election year. And Senate Majority Leader Mitch McConnell didn't even bother clinging to this fiction for very long. Last year, he said openly that he would fill a vacancy in 2020. As if on cue, he released a statement Friday night (which must have been written months ago) that if President Trump nominates a replacement for Ginsburg, that person will receive a floor vote in the U.S. Senate.
Democrats are doomed, right? Democracy is dead? Not so fast. First, it is not at all clear that McConnell has the votes to proceed with confirming a Supreme Court justice weeks before a presidential election. With a 53-47 majority in the Senate (and Vice President Mike Pence as a tiebreaker), he can only afford to lose three votes. There are multiple incumbent Republicans currently struggling for their political lives in blue or purple states, including Cory Gardner (Col.), Martha McSally (Ariz.), Susan Collins (Maine), and Thom Tillis (North Carolina). If McConnell, who is deeply unpopular, insists on jamming another unpopular conservative zealot onto the Court on behalf of the party's profoundly unpopular president, the ramifications for these candidates could be catastrophic. These states are not North Dakota, where Democrat Heidi Heitkamp was almost certainly hurt by opposing Brett Kavanaugh's nomination in 2018. Control of the Senate hinges on a number of races where blindly following McConnell down the rabbit hole could be (although is not guaranteed to be) a massive mistake.
There is a very real possibility that four or more Republicans — likely some combination of the endangered incumbents plus Mitt Romney (Utah) and Lisa Murkowski (Alaska) band together to spike the effort to fill Ginsburg's seat either prior to the election, or in the lame duck session should Democrats win the presidency and the Senate.
That would leave Democrats, at worst, in the same position they would have been in if Biden were to win the presidency and the Senate. Had Ginsburg survived until January, there is no question that she would have stepped down almost immediately. Replacing her would leave the Court's 5-4 conservative majority intact, albeit with a younger, and perhaps even more liberal person in Ginsburg's seat. While there would be loud clamoring from certain ramparts of the left to expand the Court anyway — after all, scotching Garland's nomination was itself a cynical manipulation of the Court's size — the effort would not likely have succeeded. Biden himself is too much of a committed institutionalist to endorse court-packing absent a fresh provocation, and even wildly optimistic November scenarios would leave conservative Democrats like Kyrsten Sinema (Ariz.) and Joe Manchin (W. Va.) with considerable power to undercut any escalation in the court wars.
But if Republicans insist on filling Ginsburg's seat with some Federalist Society drone, it totally changes the calculus, both for Biden and for the most right-wing Democratic senators. A 6-3 Republican majority on the Supreme Court would be much more likely to thwart Democratic policy initiatives than a narrow 5-4 majority in which Chief Justice John Roberts could still exert some moderating influence. A President Biden and his Senate, no matter how thin the majority, would come under enormous pressure to respond in kind to the GOP's ruthlessness. And the bloc of centrist Democratic senators would then have a much more compelling story to tell their constituents when they vote to add four or more justices to the Supreme Court.
After all, nothing in the Constitution prevents court-packing, just as nothing in our founding document prevented McConnell from blocking Garland's nomination. The effort to install a hard-right justice in Ginsburg's place would, if anything, lay bare the essence of the generational right-wing project to conquer the judiciary. It's not about principles, or election year exceptions, or fair play. It's about the exercise of raw power, and the determination to use as much of it as the legal order allows.
Do you think Democrats wouldn't expand the Court if McConnell and the Republicans insist on reneging on their own nonsense precedent from 2016? Think again. It wasn't long after the news broke before Sen. Ed Markey (D-Mass.) announced on Twitter that, "Mitch McConnell set the precedent. 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." Mark my words: this will be the Democratic Party's official line by the end of the weekend. The rage and fear will be so widespread that it will reach the party's cautious leadership, including Minority Leader Chuck Schumer (D- New York), who has already come out against replacing Ginsburg before the election. They will present Mitch McConnell with a choice: You can plunge this country further into crisis by trying to fill this seat, but if you do it and then lose in November, there will be absolute hell to pay.
This is a fluid and fast-moving situation, but the bottom line is this: If Democrats hold firm and threaten massive escalation, they can stop McConnell from doing his worst here. If they fail, they can still win in November, and then remake the judiciary. While that might seem like cold comfort to those rightly afflicted by Ginsburg's death, it is better than despair. There's enough of that going around already.
