I greatly admired Justice Ginsburg, and I highly recommend the recent movie RBG:
That said, RBG was a fighter from the beginning all the way to the end. She was relentless and gave no quarter, and we must fall into line and fight like she would fight. She was always prepared. She would go into battle not just with the courage of her convictions, but with a plan and with the better, winning argument. But be forewarned: an argument alone will not work.
In amply be-chinned Mitch McConnell, we are up against a monster who holds all the cards. There is no dirty trick that is beneath him, there is no tactic so extreme that he will not take, there certainly is no decency:
and then this, the keep your powder dry letter (he uses that phrase twice so make no mistake, he’s going to do whatever it takes):
In other words, there is no rat that will go un-eff’ed.
Our pals over at the Electoral-Vote blog have sussed out four scenarios:
In terms of specific options the Democrats have before them, we can see four:
- Compromise: This is probably a little Pollyanna-ish, but we’re trying to be comprehensive here. A sixth conservative justice is not quite as important as a fifth to McConnell, or to Trump. Meanwhile, McConnell is looking at the possibility of his party losing the White House, and possibly also the Senate. There may be a deal to be made here, along the lines of “We won’t kill the tax cut if you honor the McConnell Rule.”
- Parliamentary Tricks: If the Democrats remain unified, and if their spines remain in place, they do have the means to gum up the works of the Senate. Pulling that off for six months or a year would be tough, but four or five weeks? Maybe. For example, the Senate has a spending bill coming up that, by the rules of the chamber, gets priority over other matters. Minority Leader Chuck Schumer (D-NY) could propose a gaggle of amendments, and insist on a bunch of debate, and otherwise make a pest of himself. The House could also play a role here. When the fill to fund the government comes up shortly, suppose House Democrats insert a provision that no judicial appointments may be considered by the Senate within 90 days of a federal election.
- Court Packing: This is the one that everyone’s going to be talking about for weeks and weeks. Assuming the Democrats get at least 50 seats plus the White House in November, and assuming they are willing to kill the Senate filibuster, and assuming they can keep their whole caucus unified behind such maneuvers, it is within the power of Congress to change the composition of the Supreme Court. They could pass a new Judiciary Act adding four more SCOTUS seats and reclaiming the majority on the Court, since a hypothetical President Biden would surely appoint four liberals. Oh, and note that the bill would have to pass both chambers, so this option is not available to McConnell as long as the Democrats control the House.Of course, court packing is fraught with difficulties. The fact that Franklin D. Roosevelt, one of the most talented politicians the world has seen, couldn’t get it done should be cause for significant pause. Further, if successful, it could initiate an “arms race” in which the Republicans would add a bunch of seats the next time they get control of the White House and both chambers of Congress. Court packing would also undermine the integrity of the Court, and could plausibly alienate some significant portion of the voting public.If the Democrats travel this path, they may want to go with some milder version. It’s pretty clear that the Supreme Court approval process is broken, as myriad problems unanticipated by the Founding Parents have presented themselves. The Democrats could try to rally support for “commonsense” reforms, perhaps even adopted via constitutional amendment. Mandatory retirement ages, or SCOTUS term limits (20 years?), or clearer rules for when and how nominees may be considered are all possibilities. It’s worth noting that the process of electing senators was completely overhauled, under similar circumstances, in 1913.
- Lawsuit: Nobody seems to be discussing this option, but this is where we think the real opportunity is for Team Blue. Let’s start with a couple of absurd examples. Imagine that McConnell declares that all deliberation on SCOTUS nominees will be done in the men’s locker room of the Senate gym. Or maybe he says deliberation will be done in six feet of water, such that only members 6’4″ or taller will be able to breathe. These things, if they did happen, would be obvious abuses of his discretionary authority as Senate Majority Leader. Put another way, McConnell has a lot of power, but there are limits to what he can do, over and above what is spelled out in the rules of the Senate.Meanwhile, keep in mind that in the Senate, precedents are binding. It has always been this way because the very first senators and representatives operated in the tradition of the English parliament and of English common law. This fact is what makes the filibuster-killing “nuclear option” possible; if the 60-vote filibuster is overturned once on a point of order (which requires just 51 votes), then a new precedent is established and it’s overturned forever.Taking these things together, the Democrats could argue that when he applied the McConnell Rule to Merrick Garland, the Majority Leader established a precedent that is just as binding as an actual Senate rule. Senate Parliamentarian Elizabeth MacDonough might (or might not) be asked to weigh in, but she would likely agree. Either way, Senate Democrats could file a lawsuit in federal court arguing that by disregarding the McConnell Rule, McConnell is guilty of an abuse of his discretionary authority. It’s plausible that the Democrats might even prevail on the merits. More importantly, however, as we have learned many times in the past four years (see taxes, Donald Trump’s; subpoenas, congressional), it generally takes a while for the various levels of the Court system to make their rulings. Toss in the holiday season, when the courts are closed, and it’s entirely possible that such a lawsuit could run out the clock on Donald Trump’s term if he is not reelected.
I do not see these as either/or tactics, I think that some combo of all of these things might be in our battle plans. And I will add one more possibility to the Parliamentary Tricks bullet: impeachment also takes precedence over all other Senate business; take your pick:
- Elaine Chao (see below)
- Trump, redoux
Write to Jerry Nadler, it is long past time for Kavanaugh to face a jury for lying to us during his confirmation hearing. It’s the Chicago Way:
“If you open the can on these worms you must be prepared to go all the way because they’re not gonna give up the fight until one of you is dead… Do you want to know how to get Capone? You’ve got to do it the Chicago Way. He pulls a knife, you pull a gun. He sends one o’ yours to the hospital, you send one o’ his to the morgue. That’s the Chicago way. And that’s how you get Capone.”
They fuck a rat, we have to rat-eff ’em back.
But back to Mitch.
This is a battle between us and McConnell, don’t get confused over who the target is. We need an asymmetrical fight, and as he is up for re-election (and I think leading by 8 points), we need to do whatever we can to help Amy McGrath unseat him. Send donations to her. Be sure to let McConnell know you’ve done this. In spite of his reputation as not caring he gets spooked during elections. Spook him some more.
Also in asymmetry: we should go after the very corrupt Elaine Chao and her family of grifters. That Chao uses her office to benefit Mitch is indisputable; that she and her family have benefited from her office is also beyond doubt. Again: Investigate the shit out of her. Contact Rep. Peter DeFazio on who chairs the United States House Committee on Transportation and Infrastructure.
The point is, we have to hit McConnell on as many fronts as possible and keep him off-balance and off his game.
The GOP’s only path to stealing another SCOTUS seat goes right through Mitch, he is our target. Everything else is wasting time.
UPDATE 1: Dahlia Lithwick:
America has lost a warrior and it’s OK to be crushed. I am flattened. And I will mourn, because she deserves to be mourned. But we are also facing an almighty battle that will rage in the coming weeks, with attempts to fill her seat in an unseemly and grotesque manner. It will be hard, and painful, but if you find yourself feeling hopeless and powerless, then you are empathically doing it wrong. Because if anyone had a right to say “nah,” it was the woman who couldn’t get a job or a clerkship after graduating at the top of her class. But she pushed on, and then she pushed forward. She stepped into the fight of the phenomenal women who paved the path before, and now, well, it’s time to step into her fight and get it finished. I think the Notorious RBG would have peered owlishly out at all of us tonight and asked what the heck we are waiting for. And I think we can probably honor her best by getting to it.
UPDATE 2: Joe Biden
“Tonight and in the coming days, we should focus on the loss of the justice and her enduring legacy. But there is no doubt – let me be clear – that the voters should pick the president and the president should pick the justice for the Senate to consider. This was the position the GOP Senate took in 2016.”
UPDATE 3: Politico’s email thingie
THIS IS, QUITE LITERALLY, a mesh of MCCONNELL’S most animating interests: power and judicial nominees. The left frequently says that MCCONNELL is obsessed with power — and nothing but power. There is some truth to that — MCCONNELL is acutely aware of what is afforded to him by being the majority leader, and he says it quite frequently: He controls what comes up for a vote, and what doesn’t and when.
HE USES THAT POWER and that leverage with maximum impact. And you should expect that here, with a chance to reshape the court for decades to come and a better than even chance of slipping into the minority, MCCONNELL will leverage every ounce of power afforded to him to fill this seat at some point over the next 103 DAYS before the end of the year.
MCCONNELL has made his promise plain: “President Trump’s nominee will receive a vote on the floor of the United States Senate.” PAY ATTENTION TO WHAT MCCONNELL DOESN’T SAY: He doesn’t say when. Rushing the nomination could hurt some vulnerable senators. But it could also guarantee Republicans a Supreme Court seat. As WaPo’s PAUL KANE put it: “[T]his is a rare moment where a congressional caucus leader’s short-term & long-term interests seriously diverge, his/her immediate interests vs legacy. Fascinating political power play ahead….”
SO, EXPECT a nomination and hearings before the election, but not necessarily a vote. IS IT POSSIBLE that he tries to squeeze a vote in before Election Day? Yes. Absolutely — especially if TRUMP demands it. IS IT POSSIBLE that he pushes the vote until after the election, both as a practical matter to help his vulnerable colleagues, and a motivating factor for his base? Yep. Absolutely.
IS IT POSSIBLE JOE BIDEN wins the presidency, Republicans lose the Senate and MCCONNELL jams through the nominee in the lame duck? Yes, you bet. Can Democrats do anything besides bellyache? No. They can’t. And, despite what you will hear from the left in the coming days, CHUCK SCHUMER’S power is exceedingly limited. Senate Dems have scheduled a 1 p.m. caucus call (h/t MARIANNE LEVINE) to discuss their options.
UPDATE 4: Digby sez…
I know nothing of U.S. Senate procedure, just that with McConnell in charge, as we have learned, norms are disposable. My caution to Senate Democrats is they may not have the coming days to mourn and had best watch their backs. Expect no hearings. No vetting. Just a snap vote. Any day.
Thank you, TG, for this.
I’ve had this overwhelming feeling of hopelessness since I heard the news.
I want to fight, but I don’t know where to turn. I sent some donations via Act Blue last night, but that felt so small.
Your putting this all together reminds me to keep some sliver of hope, and I’ll clutch at it tightly.
“I love it when a plan comes together” … I second that thank you, I was kinda lost and dwelling stagnantly down in despair … this is a rope!
Since I don’t live in the New York 10th the form won’t let me contact Nadler. My rep is worse than useless. But it was a good idea. Impeach the drunken, lying rapist now and hold two seats for Biden to fill.
I was depressed last night. Now I’m angry and it feels better.
Thank you for this, TG. You are a balm, this place, all the wonderful scissorheads. I’ve had a well of tears in my eyes since I learned of RBG early this morning, and they haven’t yet dried up. However, Sunshine and fresh air! At last! Just got back from my first walk outside in 12 days. Oh the air smelled so sweet. And I had a lovely chat with an older woman who was sitting out by the street weeding around some plants in her yard. LOTS of Democratic signs around her yard. So I stopped to thank and compliment her on her good taste. We tearfully talked about RBG, and the parlous state of this nation. I pulled up my pant leg and showed the socks I am wearing today. Oooo, she was so gleeful! We agreed, RBG would not give up, and never did, so we couldn’t either, and had to fight harder.
It was such a relief to be outside in the sunshine without wearing an N-95 mask. And when I got home, I opened the front door and all the windows. They’ve all been shut tight for almost two weeks, the air purifier running 24 hrs/day. Oh man. The spirit of RBG flowed right through the screens.
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I went on a walk for the first time in about 10 days, but of course, masked. It rained last night and beat the smoke from an AQ of 151 down to 7.
It was refreshing.
“I do not see these as either/or tactics, I think that some combo of all of these things might be in our battle plans.”
“This is a battle between us and McConnell, don’t get confused over who the target is. We need an asymmetrical fight, and as he is up for re-election (and I think leading by 8 points), we need to do whatever we can to help Amy McGrath unseat him.”
I highly concur with the rater, as we say in the Army. Good use of the word asymmetrical, Tengrain. And I sent McGrath some greenbacks. McConnell is the problem. Bloomberg should be throwing money into that fight, and let Bugs Bunny handle Florida.
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