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.