Saturday, September 19, 2020

Ruth Bader Ginsburg Should Rest in Peace. The Rest of Us Have To Gear Up.

 Justice Ruth Bader Ginsburg has passed away after a long battle with pancreatic cancer.

Surprising absolutely nobody, Mitch McConnell has already promised to fill the seat weeks before the election notwithstanding his own months-long obstruction of Merrick Garland's nomination in the last year of Barack Obama's presidency.

It's possible he won't be able to do it. A few Republicans have hinted they won't go along with the move -- Lisa Murkowski being the most vocal, but potentially also Susan Collins and Mitt Romney. I have to assume Martha McSally has already decided she's toast in November and is just deciding to do as much damage as possible in her remaining time in office, because she waited scarcely five minutes to come out in favor of a pre-election vote. The list of Republicans who are going to publicly and unapologetically flip-flop on "filling a SCOTUS seat in an election year" is quite lengthy, but Lindsey Graham stands out for especial brazenness as he has a clip where he specifically states to the camera "I want you to use my words against me" if Republicans try to fill a seat in election year 2020.

Hypocrisy charges likely won't matter. That doesn't mean you don't fight, but it does mean that victory or defeat has little to do with how hard Chuck Schumer fights. There's no magic bullet, no secret parliamentary trick that can defeat a determined GOP majority that wants to slam through Ginsburg's replacement on short notice ahead of the next election.

What we can do is change the personnel after the election.

I've been opposed to court packing for a long time. Even after Garland, where I thought there had to be some retaliation, I thought court packing was a bad idea -- it promises a cycle of retaliation that has no logical stopping point.

I'm having trouble holding that position now, and I can't imagine cleaving to it if the GOP replaces Ginsberg before inauguration day. The Republican has announced that the new rule is that anything that is formally within the rules is permissible, regardless of how many norms it shatters or double-standards it creates. Well, confirming a new Supreme Court Justice just weeks before election day is exactly as within the rules as court packing is.

All that notwithstanding, I think the real necessary move is adding new states. DC is the obvious one, Puerto Rico ranks up there too. My stance on this is well-known. What I like most about adding new states is that, unlike court packing, it is both political hardball and unquestionably correct as a matter of non-partisan political ethics. The idea that certain American territories should be completely and permanently disenfranchised from effective political representation is an anathema to any semblance of democratic legitimacy. And the fact that the Republican argument against statehood is "but we can't win places non-White people live in" does not deserve the dignity of a response.

But all of this depends on Joe Biden winning the Oval Office, and Democrats retaking the Senate. I don't have a ton of spare income, but I sent a few dollars over to Theresa Greenfield in Iowa (it struck me as right at the line of winnable but needing an extra push). Support whoever you can with whatever you can; it doesn't have to be money either. Bear down and get the vote out however you can.

Ginsburg can rest in peace. She's earned it. The rest of us, unfortunately, can't rest at all. It's time to gear up.

1 comment:

Benjamin Lewis said...

I strongly agree with you that the actual solution has to be structural reforms / strategic changes rather than tactical level changes like one-time "pack the court today" plans. Adding new states is extremely high leverage - a global strategy.
I think there's a call for strategy via structural reforms specifically within the judicial policy "region" as well. There's no formal code of ethics for SCotUS, that seems obviously flawed, the reform bill should enact one. And the GOP has basically blown the lid at this point on 1:1 nominations for lifetime tenure seats as a functional system... justices could be assigned by 1 or combo of other methods including:
- rotating pool drawn from the various appeals circuits,
- term-based direct popular election to the SCotUS at large nationally,
- term-based direct popular election to the SCotUS at large within appeals circuits (does this idea face constitutional apportionment problems?),
- nominations or direct appointments by some independent agency or commission or etc, or maybe involving some vote of the Bar of the SCotUS

What say you - Which of these are good? Which viable? What options for assigning justices are left out? What other reforms should be packaged in?
I even have a dream that the reform bill can achieve substantial bipartisan support on its roll call votes, by playing it against a hyperpartisan court-packing bill?