New Justice Confirmed By Election Day?

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

Senator Mitt Romney – our own beloved Mittens – has Tuesday announced he will vote to confirm Donald Trump’s Supreme Court nominee.

Meaning Republicans now have the votes to confirm Trump’s nominee to replace Ruth Bader Ginsburg.

As the Wall Street Journal reports GOP Senators Push to Confirm Trump’s Supreme Court Nominee by Election Day:

More Republicans are pushing to get a successor to Supreme Court Justice Ruth Bader Ginsburg confirmed by the November elections, after senators dashed Democrats’ efforts to stop President Trump from moving ahead with a nominee.

The speedy time frame could further energize voters of both parties and add a new member to the court in time to consider a major health-care case.

Democrats’ hopes of stopping or at least slowing down Mr. Trump’s coming pick dimmed Tuesday morning when Sen. Mitt Romney (R., Utah) said he supported moving forward. Only two GOP senators, Susan Collins of Maine and Lisa Murkowski of Alaska, have said they oppose the nomination effort, which wouldn’t be enough to derail it, given the GOP’s 53-47 Senate advantage.

Mr. Trump thanked Mr. Romney for saying Tuesday that he would be willing to vote for a Supreme Court nominee before the election. “He was very good today,” Mr. Trump said during a campaign rally in Pittsburgh. “Now I’m happy.”

Mr. Trump has said he has a short list of five women judges, and he has begun meeting with possible nominees. Federal appellate judge Amy Coney Barrett of the Seventh Circuit is believed to be a leading contender, as is Judge Barbara Lagoa of the 11th Circuit in Atlanta, according to a Republican close to the process.

“I’ve spoken to many and we are getting close to a decision,” Mr. Trump told reporters at the White House as he left for the campaign rally. He said he would announce his decision at 5 p.m. on Saturday.

Republican Inconsistency: Will The Voters Care?

Republicans have clearly reversed their position now that it suits them.In 2016, they refused to consider the nomination of moderate Merrick Garland, proposed to fill the shoes of Antonia Scalia, as it was an election year and a Democrat controlled the White House while Republicans had a Senate Majority.  That seat was eventually filled by Trump with conservative jurist Neil Gorsuch in 2017

The argument Republicans made is that a Supreme Court Justice should not be confirmed in a President’s final year. Now, with Republican control of the White House and Senate (but not the House, which plays no role in these confirmation battles), they argue that they can confirm as it is not a divided government situation. Over to the WSJ:

As Republicans largely fell in line, Democrats again criticized the GOP for not leaving the pick open for the next president, which they said was Republicans’ own standard with an Obama court nominee in 2016. Republicans said that having control of the White House and Senate, which Democrats didn’t have four years ago, gives them the prerogative to confirm a court nominee.

Now, why am I reminded of Lucy and the football? We’ll see about how much voters care that Republicans are espousing contradictory rationales.

Per the WSJ:

Senate Minority Leader Chuck Schumer (D., N.Y.) said the decision to consider a Trump pick ahead of this election means the Republican majority “will have stolen two Supreme Court seats four years apart using completely contradictory rationales.” The GOP in 2016 kept open the seat for which Mr. Obama had nominated Judge Merrick Garland, and Mr. Trump nominated now-Justice Neil Gorsuch the following year.

Trump has done a masterful job at not only confirming Supreme Court picks, but also seating a passel of other federal judges, including district and appellate. And at least with respect to selecting those lower court judges, Schumer has largely gone along. I should also say with grudging respect that for someone who’s not a professional politician, Trump has certainly seized control of the political process. Not to mention runs rings around his predecessor not only on seating Supreme court picks but more generally on judicial confirmations. (See Trump After 500 Days: More Lifetime Federal Judges; and Trump Sets Records for Seating Federal Judges; and Trump Nominates Seventh Round of Federal Judges.)

The new version of the Supremes, with a solid 6-3 Republican majority, will likely opine on a host of electoral law disputes that will arise in 2020 and that will make Bush v. Gore look like child’s play.

What will Democrats do, especially if Biden wins and they capture substantial majorities in House And Senate?

Pass the popcorn.

Even law professor Steven G Calabrese, a self-identified libertarian-conservatives, who was a founder of the Federalist Society, admits the process for picking Supreme Court justices needs to be changed, as he wrote yesterday on the NYT op-ed page, End the Poisonous Process of Picking Supreme Court Justices. But I note his calls for reform don’t go as far as eschewing the pre-lectoral pick of Gisburg’s replacement, but would apply to subsequent picks.

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  1. OpenThePodBayDoorsHAL

    “Republicans and Democrats have clearly reversed their positions now that it (does or doesn’t) suit them. In 2016 etc…”

    RBG said “just because it’s his last year doesn’t mean he’s not president any more” (referring of course to the other team).

    But Trump needs another move, he could pardon Julian at the same time and really make the anti-Constitutionalists heads explode

    All seems par for the course in 2020, a season devoid of democracy ultimately decided by one of our least democratic institutions

    1. Dr. John Carpenter


      I’m not so sure handing Trump and the Repubs a big issue to point out the Dems own hypocrisy will play with anyone not already on board. If anything, it reinforces the whole both sides do it/no real difference idea (and accurately, I would add).

      1. L

        Well as the past has shown that is an environment in which Trump thrives. In fact few R supporters of Trump even bother to deny corruption anymore. They just insist, as Trump does, that “The other side” does it all the time.

        Where it will really make a difference, I think, is with Independents. Merrick Garland energized the DNC base, but nor many beyond that. The Kavanaugh hearings “radicalized” (to use Megan McCain’s words) the existing RNC base. But I don’t see either one having much of an impact on independents. But the extreme speed of this does rip off any semblance of professionalism.

        That is not to say that independents will automatically assume Republicans are wrong. But I find it unlikely that I will ever have to convince my independent friends that the Supreme Court is anything other than a political football ever again. Which means that they may no longer regard 9 as a magic number.

  2. vlade

    Re voters: Trump voters won’t care, the others will. Question is really independents, and IMO it won’t fly that well with most of them.

    Dems, if they had two brain cells would now use ads saying that clearly Republicans and Trump fear they won’t get re-elected and are cowards (Trump seems to hate being portrayed as a coward), and play on that fear (“Let him live his fear”)

    The advantage which it can give Dems is that once confirmed, it won’t be an issue for Trump voters anymore, but will for Dems/independnets.

    TBH, from the above, Republican’s best bet would be to wait till after the elections, as they still can do it in the lame-duck period (or even wait, should they win), and would not lose a strategic item now.

    On the what with it – the US system is very clearly not fit for the purpose anymore, not just SC nominations, but other bits (electoral college etc.). But it’s dubious it’s possible to change it in the current environment. Of course, the problem is, when a system is creaking along but no-one wants to change it, it _will_ break at some point, the question is only how badly.

    On a more tactical side, the court stuffing won’t work, Reps will just stuff it more when they come back. Unless you get in something that would prescribe the number of justices, which I think would have to be a constitutional law, and good luck with that.

    The fightback from Dems should be, if they do happen to control legislature and WH, is redistricting. But they profited from it as much as Reps, so doubt they would do it. Which is dumb, but since dumb is a pre-requisite for a major US political party..

    1. PlutoniumKun

      I’ve no idea if they are significant electorally, but judging from some of my relatives, there is a subset of voters who really do care – these are roughly centrist but very socially conservative older voters (I would count a lot of Irish Americans and probably hispanics among them). People who once voted Dems, but have been regular Rep voters since the days of Clinton. Generally speaking, these are people who find Trump highly distasteful as an individual, but have moved away from the Dems because of issues like abortion. Or put another way, people who would be open to voting Biden until they see Kamala Harris.

      I think that for people like that, Trump being seen to deliver a solid, catholic judge would make their minds up.

      1. L

        But would it make them vote for him again? Or say “what have you done for me lately?” My more conservative relatives also don’t like abortion, but COVID has made them move from “not liking his tweets” to actively wondering about survival and his sanity. For them a third anti-abortion judge is not enough.

      2. Alex Cox

        Interesting that you mention a Catholic. For some reason RCs seem to be a major demographic on the Supreme Court. I wonder why?

          1. lyman alpha blob

            I don’t believe the court will overturn Roe v Wade. First of all, what would the right then use to rile up their base every four years? Secondly, they could have done so during the Bush administration and it didn’t happen and was never really an issue.

            1. drumlin woodchuckles

              The lack of a Constitutional Ammendment forbidding abortion? And the Sacred Crusade to get such an Ammendment?

        1. A. N. Mouse

          The density of Roman Catholics on the court is a recent “aberration.” Historically, the court has been mostly, and at times entirely, made up of WASPs. I can’t quite remember which of my books contrasting the view of New York’s old money vs new money described how elements of high society were privately rather incensed about the changes to the court in having so many Catholics and Jews rather than proper Presbyterians and Episcopalians.

          As other comments have noted, putting a Roman Catholic on the court is a good way to further undermine abortion legality and/or women’s rights.

    2. Carolinian

      I think the people who care passionately about this are already voting Dem anyway. Indeed I have a friend who thinks elections are all about the Supreme Court.

      So getting it over and done with in a sense removes the issue since Dem fantasies of revenge are unlikely to take place. Here’s betting it will be settled before the election.

      1. vlade

        I didn’t express it clearly, it would have been better to say that it can really affect only independents – the Republican voters won’t care about the hypocrisy, the Democratic will scream (if that) but can’t do much, so the question is about the marginal voters.

        1. Carolinian

          No I got what you were saying, but I’m opining that I don’t think independents will be that concerned–particularly since the only thing to get mad about is the Repubs supposed hypocrisy. After all Trump is president and Constitutionally entitled to name a pick.

          And won’t this Trump pick simply make an already conservative court more conservative? The Dems would need several vacancies, not to mention a majority in the Senate, to change the court’s ideology.

          1. DeadlyClear

            Totally in agreement. Dems have had numerous years to make law to solidify the SCOTUS Roe vs. Wade ruling and could have passed it effortlessly. By waiting so many years, science has evolved to the point where heartbeats and shapes can be readily seen by the naked eye, making it harder to argue against when life is detected.

            Dems intentionally opened up the can of worms in 2016 making RvW a political issue when it wasn’t. Instead, they tried to broaden the parameters by endorsing full term abortions. All political antics – that hurt legitimate women in need. While it wouldn’t be my first choice – I yield the choice to a woman and her God under the parameters of Roe v. Wade.

        2. A. N. Mouse

          The kicker of course is that Democrats in the Senate, and even in the House, could have done quite a bit to stall out this process.

          Democratic leadership in the House has, but for the ongoing bluster of a foul wind (which may be a bit more literal if Nadler’s recent waddling during a Pelosi speech was caused by what right wingers are saying it was caused by), preemptively surrendered by having agreed to suspend the debt ceiling in 2019 and in passing a continuing resolution in the present.

          Senate Democrats have quite a few procedural maneuvers they should already have been proceeding with to stall things, but seem to have so far chosen to use… well… none of them,

    3. hunkerdown

      They created a two-party cartel with absolute right to rule. That’s not something dumb people typically succeed at doing, especially in a maximally predatory but resource-rich environment. Calling them dumb only serves to protect them and minimize the danger they pose when empowered by our resources.

      What’s “dumb” is expecting that ruling classes are ever even possibly anything but despotic, just because you happen to be “middle-class” enough for them to appreciate as house servants and to mostly keep the jackboots off your neck.

    4. drumlin woodchuckles

      The Koch Brothers, acting through ALEC and other front groups, have a new constitution all ready and waiting to go. All they need is a Constitutional Convention to railroad ratify their new Constitution and America will be the Libertarian Privatopia of their dreams.

      ” Change? Ya want change? I’ll give ya change . . . “

  3. Howard

    “ What will Democrats do, especially if Biden wins and they capture substantial majorities in House And Senate?”


    1. Samuel Conner

      It’s hard to avoid the conclusion that the D party wants to control House and Senate, but does not want all that much to control the Executive Branch.

      I’m not sure that a D legislature with a DJT re-elected is all that bad an outcome, in a “long game” sense. For all my dislike of the Orange Goblin (this moniker courtesy David B Hart in a recent Youtube talk on imprisonment), I really don’t want to see the D establishment rewarded with JB’s election. And it looks to me like they are not all that keen about it either.

      1. Synoia

        It appears to be a “Blame Avoidance” strategy.

        AKA “It was the Rs.” Send money to defeat them next time.

        Even if the is a D controlled next tome, it would be a “We need unity” nonsense.

      2. John k

        That seemed clear when they picked Harris, who brings wall st money but negative votes, particularly in the critical Midwest. She was best financed by far, had msm, and won no delegates, then quit to avoid showing how badly she’d do in her own state. But money is dems god, not winning, so it all makes sense.
        If they wanted to win it woulda been Klobuchar, who did win delegates.

    2. edmondo

      But they will do nothing loudly and with palms extended – someone has to pay for all those (family blog) television commercials.

    3. d

      you could be right. or they may decide to pack the court, which of course each party will do. as this point they can do nothing but gripe, since voters didnt decide to elect more of them. but is what it is, and its up to the voters decide what they really want.

  4. voteforno6

    What the Democrats should do, if they get the Senate back, is eliminate the filibuster. Next on deck is D.C. statehood, and Puerto Rico (if the residents of the island want it). Then they should start packing the courts. The Republicans will complain about that, because they’re the only ones that are allowed to exercise power. They’ve already been trying to ram through some extremely unpopular policies through the courts, so I don’t think the public will be on their side on that one.

    Will the Democrats do this? Probably not, but you never know. Schumer is up for reelection in 2022, and he has to see what’s been going on in the down-ballot elections in New York. I wouldn’t say the heat is on him, but he may have noticed the rise in temperature in his bubble bath. The rest of the Democratic caucus in the Senate may not be so inclined, but they’re used to doing nothing, with no pressure on them. There’s a lot of anger among the voters right now, and I don’t think that’s going to dissipate after the election, especially in the face of Republican obstructionism. So, something’s going to happen, we’ll just see how far it goes.

    My guess is the most likely, though, is D.C. statehood, since that’s already cleared the House. Bills are coming due for the Democratic leadership, though I don’t think they realize it yet. I’m not sure if simply passing things as messaging bills will be enough.

    1. Big River Bandido

      Just because the Democrats called for statehood for DC and Puerto Rico this spring doesn’t mean they actually believe it, or would ever do it. If Democrats got elected they’d change their positions overnight.

      1. Chris Smith

        DC and Puerto Rican statehood always seem to come up when the Dems are out of power, but when the Dems are in power these things are never mentioned. My take? The Dems want an issue but do not want to actually admit new states (especially ones that are majority POC).

        I say admit all of the territories as states (from Puerto Rico to Guam). The have a competition between Maryland and Virginia. Loser has to absorb DC (I say this as a former resident).

        1. King

          I tend to agree, the Dems won’t make changes when/if they get into power.

          Why not go with proportional representation in the senate if we’re going to dream?

    2. LifeLongVoter

      Bills are coming due for the Democratic leadership, though I don’t think they realize it yet.

      Succinct and to the point! Now the voters need to turn up the heat on Schumer’s and Pelosi’s baths until they act or leave.

      1. Skip Intro

        Pelosi might not know what hit her… Shahid Buttar has a strong campaign organization, and is running in San Francisco. I expect she’ll do as well as the hacks she endorsed like Joe Kennedy and Eliot Engel.

        1. edmondo

          I’ll go along with your fantasy – let’s say Buttar does “extremely well” – I think he could get up to 18% of the vote, leaving Nancy in real trouble with only 82%.

    3. d

      if it were me, if the dems do take power again, this time,change it so that electoral votes are actually based on state based voting, not a winner take all (so that if a candidate wins by 1 vote, they get all those votes). it will impact both the of the parties, but it would tone down the rhetoric so that its not a war on each other. might take a amendment to do, but that will keep a violence from breaking out when one or the other looses .

      1. Samuel Conner

        I think the authority to determine the procedure for apportionment of State electoral votes resides, per the US constitution, in the individual State legislatures. I haven’t paid close attention to what has happened at State level in the DJT years, but during the BHO years, the Ds lost a lot of seats in state legislatures. The Rs may have more power at state level than the Ds do at the moment, which could lead to some interesting and ugly dynamics.

        Proportional allocation of electoral votes would be a great idea if it could be implemented everywhere simultaneously. I can’t imagine that it will be volunteered by the R-dominated legislatures of states that are still “red”-ish. R-dominated legislatures in blue-trending states that currently allocate via a “winner take all” rule might go for this as a way of resisting the demographic trend.

        IIRC, roughly 2 decades ago, there was a big R push to dominate state legislatures in order to gerrymander districts to increase R congressional representation above the state-wide vote proportions. Perhaps, we’ll see similar stratagems to slow the electoral consequences of changing US demographics.

    4. drumlin woodchuckles

      Well, if the Democrats can admit new states, so can the Republicans. Just take a deep red state and turn every county into a state. And away we go!

  5. Katniss Everdeen

    Here is Politico at the time of the Garland nomination:

    But just as it appeared Garland might not draw maximum Republican ire, there were signs that the Garland pick could prove to be a letdown for Obama’s base as well.

    Democracy for America’s Charles Chamberlain said it was “deeply disappointing” that Obama did not pick a progressive woman of color. By appeasing Republicans rather than picking a choice that inspires the base, Chamberlain warned in a statement, “this selection will make it harder to excite grass-roots progressive about the slog ahead.”

    This isn’t rocket science. Trump voters will see this as a fight to the bitter end to fulfill a campaign promise, something democrat voters wouldn’t recognize if it slapped them in the face.

    1. Bill Carson


      Garland should have a prominent place in the Obama library to remind everyone how weak and ineffective President Obama was. But at least he was polite about it.

      1. d

        well part of problem, was Obama had a GOP senate, who was unlikely to have approved the pick. with at least some thing they wanted.

  6. Kasia

    This Dems should totally ignore this opening on the Supreme Court and never mention it again. They should stick to 24/7 on the pandemic. Emphasizing this issue is only helping Trump. The resistance to the pick will be shrill and ultimately futile. The best the Dems will come up with is that the female nominee once called 911 on a BIPoC! Hyper-entitled women — on the paleo-right they are called Affluent White Female Liberals (AWFL) — will be howling in agony and pissing off all their normie Facebook friends. This issue is creating reconciliation on the right as even a confirmed cuck like Mittens comes back into the fold. Americans love winners and getting this confirmation over the line will swing voters Trump’s way. The Democrats will at the same time be splitting apart and screaming accusations at each other. This is a God-send for Trump.

    1. L

      That is basically what the Biden campaign is doing, keeping the focus on COVID. Not one of his ads or text messages has mentioned the court. He has, but his primary messaging is COVID, poverty, and racism.

      1. edmondo

        ….but his primary messaging is COVID, poverty, and racism.

        Is he for or against them? It’s hard to tell from his voting record in Congress.

        1. John k

          I would have said his voting record makes his positions on those issues perfectly clear. Can anybody name a single bill he pushed when in congress that would reduce either? Anybody?

      2. d

        he really (or some supper PAC) should also mention the Trump’s 3rd rail plan. the defunding of it is his goal (admitted by him) . that will put a big problem for the GOP as they depend on the 65+ age group to make up their shortage of support). doing this will impact Trump a huge amount. the other is to also push the mail in voting thing, GOP is also dependent on that, for the same bunch vote that way (yea..i know its absent voting vs mail in voting….which is different? both use the mail to vote….)

        1. John Anthony La Pietra

          The problem with that may be the D’s standard-bearer and his pro Catfood Commission record. (Ditto for the Supreme Court — if Ds had wanted to be ready to play that card, they’d have done better not to deal in Clarence Thomas hearing chair Biden.)

          1. d

            depends when were those hearings? does your younger version of you have the same views you do? most of us have changed over the years, we just arent the same people. but not always.
            well i suspect in some ways he is trying to avoid giving Trump a new hammer to use. doesnt mean others cant use it though does it?
            given the almost complete parity of both parties, its a wonder that much gets done at all, given their hatred of each other.

            1. drumlin woodchuckles

              The Republicans may feel that hatred. The Democrats are just pretending . . . to string us along for more votes and money.

    2. leapfrog

      Excuse me? “Hyper-entitled women?” Women ARE entitled to bodily autonomy, something the Federalist Society SCOTUS candidates seem intent on taking away from women.

  7. Noone from Nowheresville

    This isn’t a moral argument to appeal to someone’s better nature (ha ha ha – sorry I digress), this is a game to be won on the political field of play.

    One does whatever is necessary to win without forfeiting the game. That’s what consistency is all about. If one has to be a hypocrite to do it, so be it. A very small price to pay to be the winner (even with an asterisk added to the historical record). Besides redemption is easily purchased. Most members of the uniparty are well-versed in it.

    Does the court matter? Sure, but lots of policy decisions matter. Trump and his team seem to be political animals when it comes to policy including court picks. That’s not by accident, it’s by agreement.

    This one Supreme Court pick is basically a done deal except for the spectacle. Both sides benefit can amp up the stakes (audience share = fundraising dollars from the top 18%) then use it as a great distraction for as long as it’s still working so they don’t have to address more pressing issues affecting the bottom 81% in the here and now. The bottom 81% might even think they’ve lost their collective minds if the rending of garments show gets too big or goes on for too long.

  8. Chris Smith

    All I see is hypocrisy on all sides here. Let’s not forget the same Democrats argued that it was the duty of the Senate to hold hearings and vote on a nominee. Both sides freely change their positions depending on which position benefits them at any given moment.

  9. AnonyMouse

    It’s a fait accompli. McConnell can see the way the wind is blowing; he can read the polls; he anticipates that Trump will lose this election.

    I think there is a decent argument for him to try and get the confirmation done prior to the election so that it’s not as nakedly scorched-earth as doing so in the lame-duck session in a hypothetical D (or tied) Senate. So that’s what I expect them to go for.

    The only question now comes whether there’s escalation. Court-packing, PR+DC, etc. I think if the new 6-3 court repeals Obamacare in the midst of a pandemic it will justify that escalation even for the most lily-livered of Dems.

    The institution is hopelessly broken and blatantly partisan and has been for an extremely long time. Court-packing would be good insofar as it would finally shatter any illusion that the Court is just calling balls and strikes and would instead illustrate that it is simply another partisan instrument. Then pressure might grow for wholesale reform and the Constitutional Convention the nation so clearly needs.

      1. km

        So what happened in 2018?

        Actually, the 2016 polls were within margins of error, for the most part. Just that those margins of error in WI, MI and PA were enough for Trump to win.

        Basically, the equivalent of rolling snake eyes, three times in a row.

        1. Noone from Nowheresville

          In the for what it’s worth column. Just did a quick presidential election number lookup just for fun via Wiki. (so take with a grain of salt, especially since seriously quick look see with no cross referencing).

          Michigan 2016 total votes: 4,799,284 up by about 68,000 compared 2012. Clinton loses to Trump by 10,704 votes. Minus 295,730 democrat votes compared to 2012. Plus 164,287 on the republican side. Uniparty / duopoly had negative 131,443 votes from 2012 totals.

          Pennsylvania 2016 total votes: 6,165,478 up by about 411,808 compared to 2012. Clinton loses to Trump by 44,292. Minus 63,833 democratic votes than 2012. Plus 290,299 on the republican side. Uniparty / duopoly had positive 226,466 votes from 2012 totals

          Wisconsin 2016 total votes: 2,976,150 down by about 100,000 compared to 2012. Clinton loses to Trump by 22,748 votes. Minus 238,449 democrat votes than 2012. Minus 2,682 on republican side. Uniparty / duopoly had negative 241,131 votes from 2012 totals.

      2. AnonyMouse

        So you think that Mitch McConnell is absolutely convinced that Trump will win re-election in November?

        Why, then, the need to ram through the confirmation of a justice prior to the election? Surely, since all the “polls” showing that Republican senators are vulnerable in ’20 are equally incorrect, there’s no need to worry.

        1. hunkerdown

          HE knows HE’S getting reelected, with the help of the Democrat establishment. It’s not as if we’re ever going to see a non-neoliberal Justice as long as both neoliberal parties still privately own the system.

        2. Big River Bandido

          Confirming that court seat will be red meat for the Republican base…which will be energized in November and reward the Republicans accordingly.

          I think Trump will win anyway, but if his nominee is confirmed, he’s as good as re-elected, having shored up his base. The Democrats, as always, will be left trying to rally their already-divided and demoralized base with nothing but austerity, IDpol and a bag of wind.

    1. marym

      Trump has made his election strategy clear since 2016: False claims of voter fraud before and after the election, court cases to suppress mail-in voting and delay and undermine the final count; speeding up the demolition of the postal service (thanks Dems for pretending to care about this for a few seconds). He said yesterday that he needs 9 justices for that. This is fine with Republicans, as voter suppression and minority rule enforced by the courts is their strategy as well. I see it as a done deal.

      I suppose ending the filibuster and packing the courts will be the new “wait for the Mueller report” for the Dems, but I wonder if their electorate will buy it again.

      With Republicans and corporate Dems in control of state legislatures ALEC would presumably design the delegate election/selection process for any constitutional convention. It would not serve the 99%.

    2. Samuel Conner

      Beware a constitutional convention. We might get constitutionally mandated austerity (balanced-budget requirement enshrined in the Constitution) forever (or until the next convention).

    3. Michael Fiorillo

      Riddled with shortcomings and outright shandas (shameful acts) as the Constitution is, I’ve seen too much dismissing of evidence/insisting on fake evidence, inability to reason, and outright derangement among my fellow countrypersons, regardless of political affiliation, to think that a constitutional convention would do much more than hasten oncoming nightmares.

      Absent a rebirth of civic culture, social solidarity, and the ability to think critically, I’d likely stay with the Devil I know.

  10. William Hunter Duncan

    I’m going to assume Trump, being the expert politician he is, will pick the most polar-opposite to RBG judge he can find, the most ideologically extreme (without dipping into Qanon territory, necessarily). He excels the more frantic he makes liberals; the more shrill liberals become, the less attractive they become broadly.

    At the same time, as distasteful and deranged as politics in Washington is, and as immune to shock as I have become about it, this move, while not surprising, truly reveals how detached from fair play it has all become. That seems truly destructive to the idea of this American experiment in democracy. Abandoning all pretense to fair play, it seems forgone that we will descend into ever greater authoritarianism, more and more the kind that is shameless and in your face.

    1. John k

      He will pick Lagoa. Rbg died just long enough before the election for her elevation… had she passed nov 4 it would have been the (possibly more conservative) woman whose turn it was.

  11. Dugless

    I am not entirely sure what the Dems will do (perhaps nothing–I’m sure the above mentioned Lucy with the football analogy has occurred to almost anyone over 40) but I would advocate playing hardball politics with the SC. The almost entirely assured pick of a sixth radically conservative justice will ensure a generation or more of repudiation of any progressive legislation if the Dems don’t pursue significant court restructuring. Typically mentioned is the overturning of Roe (pretty much a done deal) and finding the ACA to be unconstitutional (which may be a good thing) but I think the implications for a myriad of other potential progressive legislation has not been well delineated. Even if the Dems manage to take back Congress and the White House, anything they pass will be challenged by the Repubs in court. There will be no chance of universal healthcare, meaningful climate action, holding corporations accountable, limiting monopoly power, limiting money in politics, stopping voter repression, addressing inequality, to mention a few progressive causes, as any such legislation will invariably be rejected by the SC. I don’t think the Dems have any choice but to try to pack the court. Of course they are feckless probably won’t do anything but express indignation. Another cartoon analogy comes to mind–Foghorn Leghorn protesting some outrage or another.

    1. Aldous

      You’re right, and the answer is to just get on with your life and ignore it all. Don’t waste a bead of sweat thinking about it, or worrying over it. Not because there are not important implications, but rather you could waste your whole life getting het up trying to make it right, and you will not change anything, except the reduction in the quality of your own mental health. They had ‘we the people’ in checkmate at least a generation ago.

    2. Skip Intro

      Umm the democratic party doesn’t care about policy, they will be fine with a court to prevent them from doing anything good… ‘We were gonna pass M4A, but that darn court…’ All the fundraising and graft, none of the policy responsibility.

    3. leapfrog

      I read an article on The Hill today where Feinstein has “assured” the Democrats that the courts will not be packed. I don’t necessarily think packing the courts is a good thing, but a monopoly of Federalist Society SCOTUS picks to me seems to be a very bad thing.

    4. edmondo

      Even if the Dems manage to take back Congress and the White House, anything they pass will be challenged by the Repubs in court. There will be no chance of universal healthcare, meaningful climate action, holding corporations accountable, limiting monopoly power, limiting money in politics, stopping voter repression, addressing inequality, to mention a few progressive causes, as any such legislation will invariably be rejected by the SC.

      On what planet do you live? When have the Democrats ever attempted to pass any legislation to achieve universal healthcare? Or holding corporations accountable? Or limiting monopoly power? Do you know who funds the Dem Party?

      C’mon man.

      1. Dugless

        I never mentioned that they would actually do any of these things. As a matter of fact, as I did state, they will probably do nothing. I stated what I would do. As a matter of fact, I haven’t voted for the democratic presidential candidate for many years (Clinton’s first term was the last time) and won’t until they present me with a true progressive (I would have voted for Sanders). Sooner or later progressives need to stop supporting the neoliberal corporate Dems.

    5. Big River Bandido

      I would advocate playing hardball with the SC

      That ship sailed 14 years ago with the confirmations of Roberts and Alito, which changed the balance on the Court. All that “b-b-b-but the Supreme Court!” since then is nothing but performance art.

  12. flora

    GOP plays to win the political arguments. Dems play to win donations. (Impeachment was a huge fund raiser, meanwhile Dems were giving T and the GOP everything they wanted in budgets, MIC increases, and tax cuts. Kabuki on steriods.)

    1. hunkerdown

      And it all really is just a friendly game of badminton to them and their 300 million help, until the people start shouting “Nika!” in which case it becomes Calvinball. “From 532, still germane.” :) Pardon me for quoting Wikipedia at length, but I believe it’s worth close reading in the context of today.

      The ancient Roman and Byzantine empires had well-developed associations, known as demes,[2] which supported the different factions (or teams) under which competitors in certain sporting events took part; this was particularly true of chariot racing. There were initially four major factional teams of chariot racing, differentiated by the colour of the uniform in which they competed; the colours were also worn by their supporters. These were the Blues, the Greens, the Reds, and the Whites, although by the Byzantine era the only teams with any influence were the Blues and Greens. Emperor Justinian I was a supporter of the Blues.

      The team associations had become a focus for various social and political issues for which the general Byzantine population lacked other forms of outlet.[3] They combined aspects of street gangs and political parties, taking positions on current issues, notably theological problems or claimants to the throne. They frequently tried to affect the policy of the emperors by shouting political demands between races. The imperial forces and guards in the city could not keep order without the cooperation of the circus factions which were in turn backed by the aristocratic families of the city; these included some families who believed they had a more rightful claim to the throne than Justinian.[citation needed]

  13. DJG

    This quote from the article above reminds me just how much Trump is Bob the Knucklehead from Marketing, so often assisted by Sheila the Feminism = Career head of P.R. who believes her own press releases:

    –Mr. Trump thanked Mr. Romney for saying Tuesday that he would be willing to vote for a Supreme Court nominee before the election. “He was very good today,” Mr. Trump said during a campaign rally in Pittsburgh. “Now I’m happy.”

    We’re talking corporate America and its regular displays of craven fealty. Now let’s beat those sales goals! There’s an open bar after this meeting! Don’t leave any dongles on the table!

    The difficulty the Democrats face is that they never have a plan. They have Sheila from P.R. believing her own press releases. The Republicans know what is at stake here, and they have lined up the votes to pass what they want. What is so hard to understand about that?

    Meanwhile, my FBook feed is all shrine-y invocations of RBG and meditations on court packing. Court packing? (From an idea proposed by Man of the Future Buttigieg, I gather.)

    It’s another fantasy. It isn’t even politics. It isn’t do-able. But we’ll have Democrats going on and on and on about “Let’s pack the Court and then go to brunch.”

    As Laurent Dubreuil recently wrote in Harper’s Magazine: The two parties are identities, not political movements.

    1. Big River Bandido

      Actually the Democrats have a very simple plan which they execute to perfection. It’s called “enable the Republicans”.

  14. Mike G

    Democrats have really done it this time. Again I am forced to believe that they lose on purpose, otherwise how can you explain them constantly being outflanked by a party full of q-anon and tea party believers?
    I saw a tweet yesterday that also aligns with this theory, and it went something like this:

    “If you want the Democrats to really fight a SCOTUS nomination hard, just nominate Bernie Sanders!”


    1. John k

      I like Bernie, but he couldn’t win this fight. This will get done before election.
      And I now see Bernie as a great campaigner that stays on message, and then compromises to get what he sees as the best he can do, not a take no prisoner fighter to the bitter end. He will always want to be able to fight again, can’t do that if you burn all the bridges (or boats). In this case only immediate impeachment might tie up the senate enough to derail the scotus train.
      Maybe best if your champion doesn’t have an influential congressional seat they want to return to.

      1. Dr. John Carpenter

        I’m assuming the joke is the Democrats would fight a SCOTUS nominee put forth by a President Sanders. That’s how I read it (and it’s funny cuz it’s true…)

  15. A. N. Mouse

    Pelosi just passed a continuing resolution through the House. So much for her “quiver” of arrows to fight Trump and his push to replace RBG.

    Moreover, the CR gives Republicans tens of billions in funding for stuff they want while preserving 8 billion for stamps. It runs until December 11, 2020 with the excuse being that it was vital to have a funded government during the election. Of course, with a 12/11 deadline, it’s not like all the votes will likely be anywhere close to being counted so claims about brinkmanship are utterly hollow.

    1. John k

      It’s best to realize that dems and reps want to pass, and obstruct, the same things, but that the dems have to pretend to oppose some of them bc of their base. It’s theater where, of course, all actors know the other’s lines in advance.
      It can’t be any other way, they all share the same donors. Everybody knows the golden rule, the one with the gold makes the rules.

  16. d

    i seem to recall seeing that the voters show them selves to be divided this way

    roughly 30% are democrats

    roughly 30% are GOP

    bout 40% are independent

    unless a new party can get the 40% to join them, we will stay where we are, as neither party can have total control (60 in the senate….and at 51% in the house).

    today the independents will roll back and forth from each of the parties as they feel lead to

    since only the independents have a large majority, but are disorganized, the unusually pick the winners

    thats at a national level though. state and local are different.

  17. ewmayer

    Couple of thoughts:

    1. Sure, McConnell et al. are hypocrites, but Biden himself gave them the perfect pretext for delaying hearings in 2016, as he has flipped and flopped and flipped again on the issue:

    1992: Biden said then-President George H.W. Bush shouldn’t name a nominee if a vacancy arose until after that year’s November election.

    2016: Vice President Joe Biden slammed Senate Republicans Thursday for citing the “Biden Rule” as reasoning for why they won’t hold a hearing for Merrick Garland, President Barack Obama’s Supreme Court pick.

    2020: The Senate shouldn’t take up the vacancy on the Supreme Court opened by the death of Justice Ruth Bader Ginsburg until after voters have expressed their choice in the election, former Vice President Joe Biden said.

    So, utterly unsurprisingly, for both sides the posturing is 100% about partisan advantage, not any kind of “principles”. Bottom line is that the Rs have the power in the Senate, just like they did in 2016. Hey Dems: if you want to take back the Senate, how about supporting congressional candidates more people want to, you know, actually vote for? Similar applies to that whole “White House” thing.

    2. Ya gotta admire Trump’s evil marketing genius at work in form of his short list of SCOTUS candidates. “How to blunt liberal/Team-D criticism of a predicably conservative nominee?” Pick a woman, obviously. A woman of color would be even better, but whoever ends up getting the nod, there is a Latina on the shortlist in form of Barbara Lagoa. Moreover, if you look at the picture gallery of the shortlist being bandied about on TV, they’re all relatively young, *attractive* women. So Ds who too-harshly criticize the eventual nominee run the risk of being seen as ganging up on a young, attractive female nominee – horrible optics. Like I said, genius move from a PR perspective. I wonder why he didn’t use a similar stratagem the vacancy filled by Bret Kavanaugh, though. Maybe even DT is capable of learning from past mistakes?

    3. U. of Notre Dame law professor Amy Coney Barrett seems to be the current odds-on favorite – Trump considered her for the 2018 opening, but it seems their personal styles were – unsurprisingly – wildly different, which may have had something to do with Trump’s choice of Kavanaugh. The Dems cite their major concerns about Barrett being her views on abortion and the 2012 passage of the ACA, about which she criticized Chief Justice John Roberts thusly:

    “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute. He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power.”

    In fact I agree with this criticism. More concerning to me are her views on abortion. I take some hope from her own words on Roe v. Wade – from this artice:

    “Barrett is quoted in a 2013 publication affiliated with Notre Dame as saying she thinks it is “very unlikely at this point” that the Supreme Court is going to overturn Roe v. Wade, the landmark 1973 abortion decision that legalized abortion in the US.”

    We have to consider the context of 2 full generations of women having grown up with Roe v. Wade being the law of the land – surely only the most willfully obtuse SCOTUS justice would fail to appreciate the mass-scale outrage overturning it would cause. At least I hope that is the case.

    4. Drinking game: Whenever you see someone like Schmuck Chumer getting on his soap box and blathering about what is Right and Good and Just, drink whenever you hear the key word “should”. That is the word used by those who lack actual leverage, and know it. It’s like the mouse, having been trapped by the cat, pleading with the cat, “you really should let me go – I’m skin and bones, I tellya!” If “should” appears in the first sentence of the quoted snippet of blathering, drink twice.

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