Ruth Bader Ginsburg has died at age 87, while in harness as an associate justice of the United States Supreme Court.
She remained at her post for 21 years after being diagnosed with cancer. First, she faced down colon cancer. After beating that disease, she was diagnosed with pancreatic cancer in 2009, which she battled on and off for fully 11 years while serving as a beacon of civility and personal kindness—even for those who did not share her politics.
Ginsburg’s death moves the Court one step closer to the turnover that will close the book on the class of justices appointed during the ’80s and ’90s.
And it moves America one step closer to another political crisis.
In February 2016, Ginsburg’s dear friend Antonin Scalia passed away. His death did not need to spark a political crisis, but it did. Barack Obama, with 11 months left in his term, nominated Merrick Garland for Scalia’s seat. But Republicans controlled the Senate and Mitch McConnell refused to hold a vote for Obama’s nominee, claiming that concerns about legitimacy demanded that voters have more input about the nomination than a lame-duck president. Senate Republicans and most of the Republican commentariat agreed, going on the record about how it would be wrong for the Senate to consider the nomination.
We are now 46 days away from a presidential election that the current president is—just as a statistical matter—more likely to lose than win.
Republicans still control the Senate, but this majority is also in jeopardy.
And so President Trump faces a decision:
(1) Will he and the Republican Senate attempt to ram a replacement for Ginsburg through the Senate before voters render a verdict on them?
(2) Will he wait until after the election, but before January 20, to replace Ginsburg?
(3) Or will he abide by the same rationales that were deployed in the case of Merrick Garland, and allow the next president and Senate to attend to this matter?
It is not clear that any of these pathways leads to a good outcome for the country. This may be—forgive the mixed metaphor—the black swan that breaks America’s back.
Let’s walk through the chain of consequences for each branch of the tree.
If Trump and Republicans replace Ginsburg it will destroy the remaining public legitimacy of the Supreme Court. Full stop.
The Republican party’s willingness to invent, bend, cherry-pick, or break rules and norms as needed in the pursuit of power would be undeniable. Already Republican activists have begun creating ludicrous, tortured rationales: Since 1880, no Senate with more than three left-handed members has failed to vote on the nominee of a president whose name contains the letter “d.” To anyone with ears to hear and eyes to see, these justifications are an affront to common sense and basic fairness.
If Republicans choose this route, their ruthlessness would have resulted in not one, but two SCOTUS seats that will be widely regarded as stolen. And worse: stolen by a president who was himself elected despite a decisive loss in the popular vote.
Imagine what would happen if Ginsburg were replaced before November, and then Joe Biden wins the presidency and Democrats capture the Senate. There would be enormous pressure to somehow reform the Supreme Court. And it is not clear what principled counterargument might be mounted against such ideas, even if the “reform” proposals amount to enlarging and packing the Court.
The Supreme Court has become increasingly politicized since the failed nomination of Robert Bork in 1987. But it still retains a great deal of independence and popular legitimacy. This is largely a testament to the character of the justices, which has mostly outbalanced the cravenness of the politicians who have appointed and confirmed them.
But this politicization will be as nothing—absolutely nothing—compared to what would happen if Ginsburg is replaced before November 3.
Yet in truth, even that would be preferable to what would happen should Trump try to replace Ginsburg during the interregnum between Election Day and Inauguration Day.
If Trump and Senate Republicans are defeated in the election, but then try to replace Ginsburg before leaving office, the political retribution would be incalculable. The Democratic party would believe—with good reason—that there are no limits to majoritarian rule.
At which point, the powder keg would explode.
Which leaves the Garland gambit.
Either Donald Trump could decline to nominate Ginsburg’s replacement or, if he did issue a nomination, the Senate could decline to consider his nominee.
But even these choices would probably not be enough to avoid strife.
Trump’s white nationalist base is already demanding that the president fill Ginsburg’s seat immediately.
If Trump bucks his base—which would be a first—and Joe Biden is victorious, then the delegitimization of the Court will come from the other direction.
And what if Trump makes a nomination and the Republican caucus is split on moving forward? Would there be enough Republican defectors to stop the nomination? If so, then both sides would emerge from this crisis believing that they had been screwed. No one gets away clean and the Court loses, again.
There are only a handful of ways out of this trap and all of them require the prudential coordination of elites. Which is . . . not something we have seen a great deal of in the last, say, generation of American life.
The conservative legal establishment could announce its preference to leave the seat vacant, thus taking out of play most potential nominees—and also giving cover to elected Republicans to agree that the decision should wait.
If the Federalist Society declines to defuse this bomb, then Mitch McConnell could do so by simply announcing that what was good for the goose is good for the gander, and that his caucus will not entertain a nominee. (More on this in a moment.)
If McConnell declines this path, then a small group of Republican senators could prospectively announce that they will join with Democrats to block any nomination. This would be risky, both because it would tempt Trump and Senate Republicans to call their bluff and force them to actually make the vote, and because it would free both Trump and other Republicans to demagogue the issue and preemptively delegitimize any justice not appointed by Trump.
There is only one pathway that leads to comity, and Ginsburg herself opened the door to it:
Justice Ginsburg dictated a statement before her death: "My most fervent wish is that I will not be replaced until a new president is installed." https://t.co/XLzhPiLSng
— Justin Miller (@justinjm1) September 18, 2020
Trump could, seeing this, take the high road. He could issue a statement with both Mitch McConnell and Chuck Schumer stating that all parties—both Republicans and Democrats—intend to respect this great American’s last wish. That they recognize that what happened to Merrick Garland had poisoned the Supreme Court and that, by postponing this nomination, they hoped to create the space for this organ of the political system to heal.
Blood for blood. And by having Republicans endure being on the other side of the exact same situation, no more scores will need to be settled. At least in this one arena.
That would be not just a good outcome, but a great one. And a fitting final service which Ruth Bader Ginsburg would have rendered to America.
But it’s 2020.
So instead we have Mitch McConnell—in literally the same statement in which he mourns Ginsburg’s passing—announcing his intention to hold a vote on any Trump nominee.
It’s going to get worse.