Ramming through a replacement before the election might be a Pyrrhic victory for Republicans.
Ruth Bader Ginsburg made me, like countless others, proud to be Jewish. She made many more people proud to be American.
Some heroes make their mark on history in one fateful hour, when they make a courageous and momentous decision against all odds just because it is right — and win, thus expunging a record that previously was mixed or worse. RBG was very different. Throughout her long life and career, she faced, and faced down, daunting adversity at every turn. She distinguished herself by unerringly taking the virtuous side every time — and almost always winning, thanks to her passion, integrity, and commitment along with warmth, compassion and humor that matched her brilliance. So many apt eulogies have been made since her passing on Erev Rosh Hashanah that I hardly need to elaborate.
In retrospect, she did make one mistake that in the short term may endanger her legacy. She trusted her ideological rivals to act as honorably as she always did. Just days before she lost her final bout with cancer, when it became certain that her valiant bid to survive the Trump nightmare was doomed, she dictated a valedictory to her granddaughter: “My most fervent wish is that I will not be replaced until a new president is installed.” Not just elected, but sworn in.
RBG evidently believed that in 2016, Republicans who controlled the Senate meant what they averred when they refused “on principle” even to consider a Supreme Court nominee by President Barack Obama to fill a vacancy created 11 months before the end of his term and nine months before a competitive election. The people should decide, they declared.
She should have known better. Before Trump’s accession, in an unguarded moment that she had to walk back, Justice Ginsburg had warned: “I can’t imagine what the country would be – with Donald Trump as our president. For the country, it could be four years. For the court, it could be – I don’t even want to contemplate that.” Now the American people must contemplate it.
Majority Leader and Senate potentate Mitch McConnell, who invented that “doctrine” when it suited him, delivered a fulsome tribute to RBG and then vowed to trash her last wish along with his own honesty by confirming a Trump nominee before the election. Democrats are considering all manner of retaliatory measures in the House, but it looks as if McConnell has the Senate votes lined up — even, if Democrats’ delaying tactics force the vote into a lame-duck session after what now looks like a looming Trump loss on 3 November. As of Monday night, there are no more than two out of the 43 Republican senators – or even out of the 17 who explicitly pledged to uphold the McConnell “standard” for election-year nominees – that have confirmed they will keep their word.
Trump might, of course, opt for reconciliation by renominating Obama’s choice, Merrick Garland, the respected, apolitical judge whom Republicans had gladly confirmed for the federal bench. Not a chance. While making a supposed concession by promising a female nominee, Trump’s short list features rock-ribbed conservatives who are pledged to overturn Roe v. Wade. and other key milestones of women’s and civil rights that RBG fought so long and hard to attain and preserve.
But perhaps he and McConnell had better reconsider.. Much of Trump’s fabled “base” consists of the religious right that despise his character and amorality but were willing to hold their nose and vote for him in order to achieve two central goals. One, a massive tax cut, has already been (disastrously) achieved. The other was judicial nominees. Trump has indeed populated the lower federal bench with a record number of sometimes ludicrously unqualified but ideologically reliable nominees. He manned Garland’s stolen seat as well as another in the Supreme Court with ostensibly trustworthy justices. During the last Court term, right-wingers weren’t always satisfied with their performance. A Trump replacement for RBG might ensure an ironclad conservative 6-3 majority for decades.
But then Trump will have shot his second bolt. With all possible benefit from him obtained, why would his opportunistic backers stay behind him – certainly with enough enthusiasm to again narrowly put him over the top in the Electoral College? Trump’s catastrophic mishandling of Covid-19 would return to center stage, and his down-ballot coattails would be much weakened, too. Even McConnell himself, who is facing his strongest-ever reelection challenge, might feel the consequences.
Which would give the ever-playful RBG a hearty and well-deserved last laugh.