With the passing of Justice Ruth Bader Ginsburg⏤the hopes of the Democratic Party to hold on to a Supreme Court with a split philosophy has also passed. Ginsburg was the guiding light on the liberal side of the court. The timing of her replacement, and under which administration that replacement would occur, has been one of the quiet points of contention of the 2020 election, up until now that is. That timing point has now become a moment in history.
On September 16, 2020, the Trump White House releases the names of twenty new potential nominees, adding to a pre-existing list of names previously floated by the White House in 2017.
The new list includes people like Daniel Cameron, Attorney General of the State of Kentucky, Senator Ted Cruz of Texas, Senator Tom Cotton of Arkansas, Senator Josh Hawley of Missouri, Bridget Bade, 9th Circuit Court of Appeals, Paul Clement, former U.S. solicitor general, Stuart Kyle Duncan, 5th Circuit judge, Stephen Engel, assistant attorney general, Noel Francesco, former solicitor general, James Ho, 5th Circuit judge, Gregory Katsas, D.C. Circuit judge, Barbara Lagoa, 11th Circuit judge, Christopher Landau, U.S. ambassdor to Mexico, Carlos Muniz, Florida Supreme Court, Martha Packold, Northern District of Illinois judge, Peter Phipps, 3rd Circuit judge,Sarah Pitlyk, Eastern District of Missouri judge, Allison Jones Rushing, 4th Circuit judge, Kate Todd, deputy assistant to the president, and Lawrence Van Dyke, 9th Circuit judge. Sitting in the wings, Judge Amy Coney Barrett surely remains on the White House short list. It’s a very strong list of potential nominees for Trump to choose from.
Nothing happens in a vacuum in Washington DC. The Democrats also knew the facts of life. They have been making lists too. But their list was useless unless they both win the election and Justice Ginsburg survived to 2021. Given her death, that list is now moot. The chessboard has lost a queen. It is a devastating loss for the Left.
Now comes the maneuvering within the castle keep. The speculation is that the inertia and hysteria of election year politics will push the White House to nominate a candidate and demand that the Senate have a confirmation vote before the election. The fear for Republicans is that failing to do so risks not being able to do so again for the remainder of their lifetimes. This is probably true. This is a pivotal moment in American history.
So now we must begin to watch the political doublespeak of the moment. Let’s start with positioning among Republicans. Lisa Murkowski (R-AK) says she will not vote to replace Ginsburg until after Election Day. Note very carefully. This does not mean the Murkowski would not participate in a nomination process prior to election day. All she has said is that she does not want a vote until after election day.
Next, we turn to Senate Majority Leader Mitch McConnell. He has made the statement that if President Trump makes a nomination to fill the vacancy on the Supreme Court, he will make sure it “will receive a vote on the floor of the United States Senate”. He did not say whether that would be before or after the election. And remember that the Republicans will control the U.S. Senate until at least January, and maybe into 2021 if the election goes well.
From this, we can conclude that, if Trump nominates someone, the Senate will vote on a replacement justice sometime in 2020. And little, not even the outcome of the November election, can stop it.
The Democrats are likely to rely on the experience of the nomination of Merrick Garland in 2016. It did not go forward in the waning days of the Obama administration. But, the Republicans controlled the Senate in 2016, creating a structural block. The political arithmetic is completely different this time. The Republicans still control the Senate, but they are an enabling force this time. Look. Politics isn’t fair. It’s opportunistic. That is a huge pill for the Democrats to swallow.
The fear of it will pivot the 2020 election into a political war.
The Democrats are masters at never letting a crisis go to waste. This time it really is a crisis. They will look for the moral high ground to plot revenge. It will galvanize Democratic efforts to win the election.
It may catalyze even the Establishment and Progressive wings of the party, who really do hate each other, to bury the hatchet in a temporary alliance of necessity.
The real story here is that if Donald Trump pushes for a Supreme Court nominee too aggressively and it become an all out war⏤he may win the court and lose the election for himself, his party and the Nation.
Such a loss will mean the disappearance of the agenda of the Outsiders versus the Washington Establishment. It will mean the abandonment of the cause that America elected Donald Trump to champion for them.
If that happens, the Establishment wins. Let that sink in for a moment.
This is the hidden trap. The real calculus of these events. And, as I alluded to earlier, only one man can guide the country through this morass. It falls to Donald Trump to show us now just how good he is at the “Art of the Deal”. How can he extract a win-win out of a trap that has been sprung by the seat left behind by Justice Ginsburg? Can “the Donald” find a way to win the election and pave the way for filling the vacancy?