The Chess Game Around Ruth Bader Ginsburg’s Successor

The passing of Ruth Bader Ginsburg has completely shattered the bubble around election season, drawing passionate comments from both Democratic and Republican lawmakers and voters.  The issue of whether a nominee should be put forward (and potentially confirmed) is going to be incredibly divisive.  On a purely political level there are three major actors in the fight over replacing the iconic liberal judge, so let’s take a look at the motivations and position of each in turn.

Donald Trump

Motivation: Use this appointment to maximize his value to religious conservatives and the far-right in general in a way that boosts his electoral chances in November

This incentivizes several different moves for President Trump.  On one hand, one could make a strong argument that holding off on nominating a new justice would do the most to energize the Republican base.  The danger here is obvious: Trump still might not win, leaving him to try to push a justice through during the lame duck session, which might cause public opinion about him to sink.  That said, Trump doesn’t often respond to public opinion, so its hard to predict how much he might care about that outcome.

It also incentivizes President Trump nominating a conservative before the election, insofar as it might cement Trump’s bonafides with religious and social conservatives in the run-up to election day.  Should he succeed in installing another conservative to the court, Trump’s count would stand at a stunning three justices confirmed in a single presidential term.  His nomination of these justices might set back the liberalisation of America an entire generation.  Roe v Wade could be struck down, along with the Affordable Care Act (i.e. ObamaCare).  Citizens United would likely be affirmed.  On and on.

The smart play, and the one Trump seems to be considering, is to split the baby and have hearings before the election, ginning up support in his base and rallying his supporters to get out and vote, but save the actual confirmation for after.  President Trump has no incentive to sit on his hands, so at the very least a nomination seems imminent.  It also allows Trump to sweep away some of the furor over his handling of Covid-19 and the latest Bob Woodward book.  Strong win all-around here for Trump.

I would suspect he announces the nominee later this week, and my instincts tell me he will want to forestall a gender discussion, so a female judge (Amy Coney Barrett?) seems likely.

Mitch McConnell and the Republican Majority

Motivation: Completely ignore the hypocrisy of the situation and move quickly to install a conservative justice

Mitch McConnell is a master of realpolitik.  Four years removed from completely refusing to hold hearings for an Obama nominee (Merrick Garland) for nearly a full calendar year, stating that the people of the United States should get a referendum on the issue through the election, McConnell has had a change of heart.  This time around, he has openly stated he plans to move quickly and that any nominee put forward by Trump would receive a vote in this legislative session.  McConnell was immediately criticized for this perceived hypocrisy, but to no avail.  And as we will see, there is no incentive for McConnell to do otherwise.

McConnell knows the state of the race, and Trump is looking more and more likely to be a one-term president.  If that is to be the case, McConnell’s job is to limit the damage, and try to hold onto the Senate.  There are quite a few Republican seats up in this wave (sort of opposite of the 2018 midterm elections, which saw Democrats mostly playing defense) and McConnell is betting on the issue of another Supreme Court appointment being a driving force in getting Republicans to the polls.  Remember, McConnell only needs 51 Senate seats to hold the majority against a Democratic president.

Even if Republicans lose the Senate (not very likely, but for the sake of argument) McConnell will still hold the requisite 41 seats required to filibuster legislation, of which he would undoubtedly take advantage.  There is no down-side here for McConnell, because if his obstruction goads a new Democratic majority into ending the filibuster to pass Democratic policy goals, Republicans can make a campaign issue of it in the midterms, and potentially win back a Senate majority that no longer is shackled by the filibuster issue.

Chuck Schumer and the Democratic Minority

Motivation: Use any possible combination of methods to stall and obstruct McConnell from holding a vote before election day

Schumer is in an unenviable position here.  He has no choice but to fight out his battle in the media, since there is no legislative recourse available to him.  The Republicans ended the filibuster on Supreme Court nominees, an action which echoed a similar move by Democrats on district court judges and executive appointments a few years before.  So his only hope legislatively is for four Republican senators to defect and vote against the confirmation of a new judge.  

Susan Collins (R-Maine) stated she opposed a new justice before the election, a position Senator Lisa Murkowski (R-Alaska) has also gone on the record supporting.  This means Schumer would need two more defections, a scenario which seems unlikely but is at least plausible.

Schumer, and by extension Democrats, can only threaten retribution should they take the majority in the fall.  Ed Markey (D-Massachusetts) has stated his support for ending the filibuster and packing the Supreme Court should Republicans confirm a new justice this year.  Should Democrats take the majority in the Senate in this election, the filibuster will almost certainly have to be abolished if they hope to make any progress on their policy goals (see this primer I wrote on the filibuster).

The upside for Democrats is that this issue has become hyper-partisan in the last few years, and Democratic voters are unlikely to forget Mitch McConnell refusing to hold hearings for Merrick Garland.  Additionally, the possibility of a 6-3 conservative court overturning Roe v Wade might activate religious conservatives, but it also seems likely to continue to fracture the relationship between Republicans and women, particularly in the suburbs.  Both sides are likely to see increased turnout around this issue, and therefore its going to be very difficult to forecast how this issue might affect the coming election.

Potential long-term scenarios

There’s no doubt that the outcome of this situation is going to reverberate throughout politics for a generation.  Assuming the Republicans are successful in nominating and confirming a judge before this session of Congress ends (remember they have the lame-duck session between the election and the new year), you could see widely-varying chain reaction scenarios.  Look at these contrasting scenarios, none of which seem impossible:

  1. A new justice is sworn in before the election, and activated Democratic voters propel them to a sweep across the board, taking a slight majority in the Senate and the White House.  They then eliminate the filibuster, and proceed to pass priority legislation (Supreme Court reform, income inequality, health care, and criminal justice reform would all be on the table).  The ideas prove broadly popular but implementation is slow and clumsy, leading the Republicans to take back the Senate in the 2022 midterms.  They obstruct any more legislation until 2024, and after two years of no movement, restless voters elect a Republican president with a Republican Senate and no filibuster.
  2. A new justice is sworn in before the election, Republican voters and religious conservatives in particular turn out and propel Trump to a second term.  Losses in the Senate are mitigated, leaving McConnell with a narrow majority, and giving the country four more years of Trump and Republican control, and cementing the conservative majority in the Supreme Court.  The Supreme Court’s rightward shift sees the end of Roe v Wade at the very least, and a strengthening of gun rights, further widening the gap between American-style democracy and other western democracies.
  3. A new justice is sworn in before the election, and activated Democrats push the margins wide, delivering Democrats firm control of all three branches and a mandate to rule.  They proceed to end the filibuster, and then tack away from progressive policy dreams and toward practical pro-Democrat issues that cannot easily be reversed by a future Republican congressional majority.  They grant statehood to D.C. and Puerto Rico.  They pass universal mail-in voting as an option for all voters.  They increase legal immigration, and grant amnesty to illegal immigrants already in the country, widening the pool of Democrat voters.  This allows them to further strengthen their majority in the 2022 midterms, and an entire generation of Democratic legislation could be passed in a few short years.

The fact that all three of these scenarios seems plausible speaks to how widely the outcomes can vary from an event this big.  The next four months might dictate the next forty years in American politics.

The History of the Filibuster (and Why It’s Suddenly in the News Again)

With the election less than seven weeks away and the Republicans increasingly looking in trouble nationwide, noise is being made by Republicans about Democrats potentially ending the filibuster in the Senate (the so-called “nuclear option”, a term that is intentionally alarmist), should they win in November.  This is nothing new, and both parties are guilty of using the possibility of the opposition party coming into power and ending the filibuster as a scare tactic.  

In this cycle, with Trump potentially costing Republicans down-ballot races all over the country, Democrats stand a chance of shooting the moon and completing a trifecta in the federal government (i.e. control of the Presidency, the Senate, and the House).  If they were to do so, and then eliminate the filibuster in the Senate, the path would be cleared for the party to push through Democratic legislation as they would no longer need 60 votes to pass their agenda.

Whether they will manage to overtake the Republicans in the Senate is an open question, and there is no guarantee that a Democratic majority would end the filibuster (and in fact, parties before have had a “trifecta” and not done so).  While we wait for Election Day here’s a primer on what exactly the filibuster is, why it’s important, and what might happen if it disappears.

What is a filibuster?

As simply as possible, the filibuster is a procedure within the arcane rules of the Senate which allows a Senator to delay the closing of argument over a piece of legislation, as no vote can take place until arguments have ended.  Traditionally this was done in the most straightforward manner possible, with the Senator or Senators filibustering a bill simply talking endlessly for hours, never ending their argument and never ceding the floor.  Senators would talk aimlessly, read phone books, and simply continue to chew up time until they were physically unable to continue.  The longest filibuster on record was over 24 hours (Senator Strom Thurmond filibustering the Civil Rights Act in 1957).

Most filibusters now are not so dramatic.  More often, the minority party simply threatening to filibuster a bill is enough to keep it off the floor entirely, with actual Senator-talking-forever style filibusters mainly used by individuals (we see you Rand Paul) to gain media exposure for a point of view they feel is being ignored.

Notably, the filibuster is not an institution enshrined by law or the Constitution, but rather is enacted by the rules of the Senate, which can (and have) been changed by the Senate itself with a simple-majority vote.  This means a party with 51 votes (either 51 Senators or 50 + the Vice President) could change the rule to eliminate filibusters.  Keep this in mind.

Why is the filibuster important?

A filibuster can be ended by a vote of ‘cloture’, but Senate rules require a 3/5ths vote (60 in a 100-seat Senate).  This means that the de facto number of votes required to pass any significant legislation has been raised from 50 to 60, and with the closely contested two-party system in the United States it is a rare majority that clears the 60-vote threshold.  

This change has had the effect of making it much more difficult to pass legislation for the majority party, particularly over divisive issues such as health care and climate change.  It also sets up an extreme scenario where one party is completely out of power and yet is able to obstruct any potential legislation by the majority (assuming the Senate majority is not 60+).  The Republican party obstruction under President Obama leaned heavily on their ability to filibuster major Democratic legislation, with Obamacare only sneaking in because of a similarly arcane rule about budget reconciliation.

What might happen if it’s gone?

Well it already is for some things.  Again, because the Senate makes its own procedural rules, it can be ended at any time, and it can be ended for specific situations.  The Senate (with a Democratic majority) ended filibusters of judicial and executive nominees in 2013, with a Republican majority doing likewise for Supreme Court nominees in 2017. 

That said, the ending of the filibuster entirely would pave the way for the party in power to pass legislation that would otherwise stand no chance of passage.  There’s always been some lamenting from Democrats that they missed a potential chance to wield a 60-vote supermajority in 2009.  This time, they seem poised to overhaul the economy to address social inequality, continue to push social liberalism as the future, and finally finish the job on health care.  In particular, a large package of legislation such as the “Green New Deal” would be infinitely easier to pass without the filibuster. But both parties have traditionally been wary of ending the filibuster entirely, under the logic that all parties eventually cycle back into the minority, and neither party wants to be completely powerless to stop their opponents.

So expect to see a lot more talk about how a Democratic majority in the Senate and a Biden presidency would lead to the end of the filibuster.  It’s one of the few tools a party has to gin up turnout in a down cycle for the party, and no one knows the value of a good filibuster like Mitch McConnell.

Republicans Have No Incentive to Pass a Second Stimulus

To the great surprise of absolutely no one, the vote on the “skinny” stimulus package put forward by Senate Republicans failed, as it was always intended to do.  Following a round of criticism for his handling of the stimulus negotiations before the August recess, Majority Leader McConnell has found his footing again, completing a masterful stroke even in failure.

McConnell succeeded on multiple fronts, even as the bill died in the Senate.  The vote tally was 52-47, well short of the 60-vote threshold required to overcome the filibuster.  Every Republican save one (we see you Rand Paul) fell in line, finally providing the united front that McConnell had hoped to present the first time around.  Paul’s nay vote is ultimately a protest vote, as he (and indeed everyone) knew the bill was only the staking out of a position by McConnell.

Further success for McConnell comes in getting Democratic lawmakers on the record as voting ‘nay’ on a stimulus.  The fact that they voted against a laughable imitation of a true stimulus package doesn’t matter nearly as much as the dozens of Republican campaign ad lines that will claim Democratic Senator X voted against helping the American people.

Now that McConnell has whipped his caucus into line (at least in posture, if not in reality), the real work can start.  But the question remains: why should Republicans, fully aware of the state of the 2020 election polls, do anything to ease the burden being felt by millions of Americans directly affected by Covid-19?

McConnell is an unabashed realpolitik disciple, and so we can dispense of the ridiculous notion that he might put the needs of average citizens first.  If that was the case, there would be bi-partisan support for enhanced unemployment benefits, eviction moratoriums, and social distancing.  Half of McConnell’s caucus has already moved on to the idea that herd immunity will save us (doubtful) or that a miracle vaccine is just around the corner (ignoring that the segments of the population that believe Covid-19 is a hoax strongly overlaps with anti-vaxxers, making distribution of a vaccine fraught with issues).

Instead, with polls showing President Trump underwater in multiple swing states, and an ever-increasing tailspin in the White House (currently pivoting from a controversial Atlantic piece alleging Trump disparaged the military and war heroes to revelations coming from Bob Woodward’s upcoming book Rage), the incentives for McConnell and other Republicans on the hill have shifted wildly.

If you accept the ousting of President Trump this November as a fait accompli, then the Republican-controlled Senate has no incentive to pass any stimulus bill, however skinny.  Instead, allowing the country to wallow and punting back and forth between the Senate and the White House to stall for time allows for President Trump to continue to paint himself as the only possible savior while also ensuring that if Trump does lose (as seems likely) then the disaster will fall into the lap of Joe Biden.  

If McConnell’s goal is to limit the Republican loss of legislative power to one election cycle, then leaving Biden with the worst possible scenario is a major victory for Republicans.  The President’s party generally sees some reverses in the midterm election, potentially allowing for a revival of McConnell’s obstructionist policies.  Of course, all of this depends on the composition of the Senate following the election.  If Biden is swept in on a blue wave the Senate could fall to Democrats as well, setting up a cataclysmic showdown over potentially ending the filibuster (often rhetorically called the “nuclear option”).

As the election nears, President Trump might consider ordering more stimulus through executive action, such as a direct payment to Americans of the kind that was sent out in April but was excluded from the “skinny” stimulus.  As what is good for President Trump and what is good for Republicans writ large grow further apart, President Trump must tread carefully to avoid suddenly being set adrift by his own party.

Links:

Senate votes weren’t enough to pass a second stimulus package. Here’s why – Vox

Senate Democrats block GOP relief bill – The Hill

Senate fails to advance coronavirus stimulus package – Politico