Intermission 1: RBG

Weekend notes on RBG and ghouls in politics.

Content warning: This post contains personal thoughts on ongoing political events, and odds are pretty good that what I say here will make you angry or annoyed at me. Proceed at your own risk.

As I was wrapping up work and packing up to head home after wrestling with setting up a new server for a client[1], and as I’m putting browser tabs away, I saw the news that Ruth Bader Ginsburg passed away. The first response that I had at the time was an “Oh. Fuck.” We’d known that she had been fighting serious cancer for some time, but I was under the impression that she was prevailing in that battle. I don’t know if I’ve felt the same emotions while ingesting the fact that she died since I heard about Steve Jobs’ untimely passing from the same disease.

My second thought was that I hoped that I’m wrong about the whole there’s no afterlife thing, because wouldn’t it be wonderful if Ginsburg were reunited with her longtime friend Scalia and they could be drinking wine and riding elephants in the hereafter?

I was hoping that we’d have a nice weekend remembering and honoring Ginsburg and we could defer the political-implications discussion to Monday. I would have loved to see us highlight to what extent Ginsburg was a very important role model to mothers and daughters, and how she kindled young people’s interest in the Court and Constitution.

Like many broken things in our modern American landscape, leave it up to Mitch McConnell[2] to screw that up. His office released a statement shortly after the news of RGB’s passing broke:

The Senate and the nation mourn the sudden passing of Justice Ruth Bader Ginsburg and the conclusion of her extraordinary American life.

Justice Ginsburg overcame one personal challenge and professional barrier after another. She climbed from a modest Brooklyn upbringing to a seat on our nation’s highest court and into the pages of American history. Justice Ginsburg was thoroughly dedicated to the legal profession and to her 27 years of service on the Supreme Court. Her intelligence and determination earned her respect and admiration throughout the legal world, and indeed throughout the entire nation, which now grieves alongside her family, friends, and colleagues.

***

In the last midterm election before Justice Scalia’s death in 2016, Americans elected a Republican Senate majority because we pledged to check and balance the last days of a lame-duck president’s second term. We kept our promise. Since the 1880s, no Senate has confirmed an opposite-party president’s Supreme Court nominee in a presidential election year.

By contrast, Americans reelected our majority in 2016 and expanded it in 2018 because we pledged to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.

President Trump’s nominee will receive a vote on the floor of the United States Senate.

Out of curiosity, I threw that statement into two documents in Microsoft Word, using the "***” to split the two up. We end up with 103 words about Ginsburg’s passing, and 110 words bragging about his success in opposing the opposing party’s SCOTUS nominee, and how he’ll deliver a vote on Trump’s nominee to replace Ginsburg.

This is fucking ghoulish. In the literal sense of the word.

To his credit, Trump had a much more appropriate and respectful response to the news after hearing it:

There was shock, surprise, and genuine sadness in that reaction. It would have been nice to spend the weekend remembering Ginsburg’s extremely impressive life and history, but because the Ghoul that runs the Senate couldn’t restrain his glee, we’ve skipped ahead to the What Happens Next conversation that should have waited until next week. I don’t understand what McConnell hoped to accomplish with his statement and what price (if any) he would have paid by spending the weekend offering his condolences and respect to the Ginsburg family, and leaving the succession conversation for the next week. I’m honestly appalled and flabbergasted. I just don’t get what was going through his and his staff’s heads yesterday. What was gained here?

What happens next?

It sounds like McConnell is going to push the Trump administration for a nominee next week in hopes of fast-tracking a nominee through the process. (The ghouls-lite at The Federalist are already itching for a rush process.) Trump quickly hopped aboard and this next week, we’ll be hearing at ton about Amy Coney Barrett, a close runner-up for Kavanaugh’s seat. And anyone who was paying attention to the Merrick Garland situation will bring up the 2016 McConnell Rule:

“The next justice could fundamentally alter the direction of the Supreme Court and have a profound impact on our country, so of course the American people should have a say in the court’s direction,” he said.

“The Senate will continue to observe the 'Biden Rule' so the American people have a voice in this momentous decision. The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate somebody very different. Either way, our view is this: Give the people a voice in filling this vacancy.”

As much as I’m usually able to come up with a School House Rocks explanation about why this is happening the way that it is, it’s abundantly clear now that we’re in a period of pure power politics - damn the precedents, damn the norms, folks are going to fight dirty to get what they want.

Here’s my prediction for how the next several weeks play out:

  1. Trump nominates Barrett to replace Ginsburg this next week.

  2. This next week, “centrist” and vulnerable Senators publicly angst about whether to support a vote before the election, with insufficient defections emerging to derail the process. Murkowski is already a “no” on an early vote, and I expect Romney will join her. I don’t see two more holdouts (McConnell can only tolerate 3 defectors with Pence being a tiebreaker), but I wouldn’t be surprised to see one more vulnerable Senator (with permission from McConnell) join Romney and Murkowski as a way to boost their campaign fortunes back home. Normally, having Pence cast a tie-breaking vote would be something to avoid, but we’re in Power Politics Mode at the moment.

  3. Republicans fast-track the nomination and we have full Senate hearings before the first week of October. Democrats refuse to participate and boycott what they claim is an entirely illegitimate process. Barrett is confirmed on a party-line vote.

To the extent that 2020’s political polarization is already at an unimaginable scale, prepare to turn that dial up to 11 (again). I expect we’ll see some violence against politicians, fellow citizens, and political institutions leading up to the November election. There’s far too much power currently concentrated in the Supreme Court, and half the country will react to what they perceive is an existential threat to their ideas of what it means to be an American.

If you were to ask me to wager money on events after the Barrett confirmation, I’d put my money on a Biden victory in November, avoiding the scenario where Barrett becomes a deciding vote in a contested election where Trump is a party that appointed her two months earlier. In January 2021, feeling no loyalty to respect Senate traditions or wishes of the new GOP Senate minority, the Senate Democrats abolish the legislative filibuster and pass the Judiciary Act of 2021, which enlarges the Court from nine to thirteen, as well as enlarging various other federal courts, rendering McConnell’s life’s work moot. Biden submits a whole host of nominees to the Senate, who approve them at a rate that makes the GOP’s Senate approvals seem sluggish. Savvy progressive lawyers bring cases to the Court that eliminate the structural crutches that the GOP minority used to grab and hold power. We enter The Future That Progressives Want.

So, how do I feel about all of this?

First of all, I’m a big fan of deescalating the situation and punting the nomination of the next Justice to the winner of the election. The potential for violence at the moment is simply too high for any benefits of seating a Justice Barrett in October. I hope we see sufficient defections among the Senate Republicans to forestall this whole sequence of events, but I am not holding my breath on that.

Second, I don’t have a lot of well-formed feelings about a Justice Barrett. My own Constitutional jurisprudence tends toward textualism - we should interpret the Constitution by what it says, just as we would interpret a contract - and I need to read more about Barrett to see where she falls on the jurisprudence map. To what extent she supports the devolution of power from federal to state officials - I’ll be a fan. If she is a vote toward reversing the trend where Congress outsources policymaking to administrative entities in the Executive branch - I’ll support her. If she is a vote for allowing federal and state entities get in the way of fair voting and tolerates schemes of voter oppression - I’ll oppose her. I need to do some more reading to get my bearings on her as a judge.

Third, I don’t have any major aversions to a Democratic President and Congress enlarging the size of the judicary. The Constitution empowers Congress to set the size of the Court, and while having a nine-justice Court for while has been useful for establishing and maintaining the legitimacy of the Court, at the end of the day, who the folks in the robes are is decided in a political manner, so it’s probably better for us to come to grips with that sooner than later, and get on with our lives.


A closing thought:

Work for what you believe in, but pick your battles, and don’t burn your bridges. Don’t be afraid to take charge, think about what you want, then do the work, but then enjoy what makes you happy, bring along your crew, have a sense of humor.

-Ruth Bader Ginsburg, Notorious RBG by Irin Carmon

If there’s an afterlife, I hope Ginsburg’s enjoying her wine and riding elephants with her pals. She certainly earned it. Our world is a better place for having had her in it.


[1] Hard-won-tip: Turn off address space layout randomization on servers with ARM cores if older Linux binaries are mysteriously segfaulting, like tripwire was.

[2] Thank the editor for cleaning up (most of) the language of this post - earlier drafts were much more salty.