Chaos lurks after death of Ruth Bader Ginsburg

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The death of Supreme Court Justice Ruth Bader Ginsburg is a profound loss to the judicial conscience of this nation.

But in our mourning, there is no escaping the political firestorm that has erupted with her passing – as if this election year needed even more flammable fuel.

Within two hours after the news of Ginsburg’s death broke, Senate Majority Leader Mitch McConnell declared that the Senate would proceed with all due speed on confirming the nominee put forth by President Donald Trump. 

This contradicts what memorably happened in 2016 when Justice Antonin Scalia died that winter and President Barack Obama put forth a nominee but McConnell refused to even consider the nomination on the grounds that, it being an election year, the next president should make that decision. So, in 2016, a Democratic president’s nominee was stonewalled for 10 months because it was an election year, but in 2020, just six weeks before the election, a Republican president’s nominee will apparently proceed full steam ahead.

South Dakota Sen. John Thune has embraced McConnell’s approach. “As Leader McConnell said, President Trump’s Supreme Court nominee will receive a vote on the floor of the U.S. Senate.” This in contrast to what Thune said of Obama’s ability to nominate a justice in March 2016: “Since the next presidential election is underway, the next president should make this lifetime appointment to the Supreme Court.”

Of course, this is 1) naked hypocrisy, and 2) utterly unsurprising. In this political climate, no one can pretend otherwise.

One rationalization for this flip-flop is the argument that the Democrats would do the same thing if given the chance. That may well be true, for it is a politically irresistible temptation. But that supposition also functions as self-fulfilling prophesy, for Democrats would now likely do just that in response to this.

And here lurks chaos.

Trump may indeed send a nomination to the Senate and could get a vote prior to the election – although, at this writing, that isn’t a sure thing as a few Republican senators are mulling whether to adhere to the 2016 precedent. In this scenario, it could put an even more pronounced rightward tilt to the court that may last a generation (although, given the turnover we’ve seen lately, maybe 5-10 years at best).

However, should the Republicans proceed with this but Joe Biden then wins the presidency and Democrats take the Senate – which is a real possibility – the Democrats could opt to scrap the filibuster rule and expand the Supreme Court by two or four or six (or more) justices, a maneuver that would not fall under constitutional constraints.

Thus, we may be on the precipice of “slippery slope” territory with this situation. (As an aside, an expansion of the Supreme Court has intriguing arguments for it both ways, but that’s another debate for another time.)

At this point, it’s hard to see who stands down in this political confrontation. It’s also difficult to see how one action on one side (other than enough Republicans refusing to move with this until after the election) can diffuse the other and bring a sense of order to this extraordinary moment in our history.

This is high drama in real time, and it may remain so for quite some time.