Ruth Bader Ginsburg died yesterday. Today, and tomorrow, and for as long as it takes, us progressives need to do what Ginsburg would want -- act to defend the integrity of the Supreme Court seat that she held with great distinction since 1993.
Action relieves anxiety.
When I heard about Ginsburg's death I was deeply troubled. I knew that Donald Trump and Mitch McConnell would try to get her replacement confirmed by the Senate as soon as possible.
Maybe before election day, November 3. Surely before Inauguration Day, January 20, 2021.
Just because McConnell said in 2016 that Merrick Garland, Obama's Supreme Court nomination after Scalia died, couldn't even have a hearing in a presidential election year, there's no way McConnell wouldn't move full speed ahead on a Trump nominee to fill the Ginsburg vacancy.
I've spent last night and today perusing the thoughts of knowledgeable political observers about what can be done to stop, or ameliorate, the travesty of Trump being able to get two illegitimate Supreme Court nominees confirmed. Well, three if we count the Kavanaugh nomination.
Here's my conclusions.
(1) Working to elect Joe Biden and a Democratic Senate majority is Job #1. So long as Republicans control the White House and Senate, Democratic options are extremely limited. The best that could be hoped for is delaying the confirmation of the Trump nominee.
So this morning I donated to an Act Blue campaign that splits contributions between Biden and Democratic Senate candidates. There are several Act Blue campaigns that do this.
One idea, though, that is too hardball'ish is the House voting to impeach Bill Barr, the Attorney General, and/or Donald Trump. Yes, impeachment proceedings must be taken up by the Senate before anything else. But this move wouldn't be popular. It could jeopardize Job #1 above, electing Biden and a Democratic Senate.
I haven't seen this idea discussed much, but I like it. A continuing resolution to fund the government has to occur before September 30. Pelosi should demand that the Senate not start hearings on a Trump Supreme Court nominee until after January 20. Most Americans apparently would support this. So it has a fairly low political risk.
(3) An alternative to the above idea would be to demand that hearings not start until after Election Day. This would be better than nothing, but not as good as hearings starting after Inauguration Day. In either case, the Supreme Court would have only eight members in the crucial post-election period when lawsuits regarding the presidential election might find their way to the Court.
A nightmare scenario would be if the Biden-Trump race comes down to a single swing state where Biden has a lead and Republicans contest a bunch of mail-in ballots, or whatever. If a conservative federal appeals court ruled in favor of the Republicans, a 4-4 tie on the Supreme Court would allow the lower court ruling to stand.
But if Trump; was able to get his nominee confirmed rapidly, the nightmare scenario would still hold, since almost certainly the Supreme Court would vote 6-3 or 5-4 in favor of Trump, depending on how Justice Roberts voted on the case.
(4) If Biden wins and the Senate turns Democratic, appealing options exist. This is the dream scenario, even if the Senate confirms a Trump nominee before Inauguration Day. Democrats are talking hardball in this regard.
This is allowed by the Constitution. Adding four seats would give Democratic nominees seven seats on a 13-member Supreme Court. An alternative would be adding two seats, or any other number that a Democratic Senate and House would be willing to go along with.
Of course, Biden would also have to buy off on the plan, which hopefully he would.
Another idea being floated is to make Puerto Rico and Washington, D.C. into states, thereby likely adding four Democratic Senators. That might be needed if a Democratic majority in the Senate next year isn't large enough to pass a Supreme Court expansion bill.
So all is not lost, fellow anxious progressives. Again, the key thing is that Biden wins on November 3 and a Democratic majority is elected to the Senate. If those things happen, another Trump nominee on the Supreme Court won't matter a whole lot, given the options to address the size of the Court.