The Supreme Court vacancy.

A battle for the ages begins.
Isaac Saul Sep 21, 2020
I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum — then “my take.” You can read Tangle for free, subscribe for Friday editions and you can reach me anytime by replying to this email. If someone sent you this email, they’re asking you to sign up. You can do that by clicking here.

Today’s read: 13 minutes.

Ruth Bader Ginsburg’s death, the vacancy, and what’s next. I’m skipping the reader question today to focus on this monumental, potentially election-changing story.

Image: Tangle News / Magdalena Bokowa

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Quick hits.

  1. More than 200,000 Americans have now died of coronavirus, a grim milestone passed over the weekend. More than 6.7 million Americans have contracted the virus in total, and U.S. colleges continue to struggle with containing the virus and keeping students from spreading it amongst themselves in group gatherings.
  2. The White House authorized $11.6 billion in federal aid and FEMA grants to help rebuild Puerto Rico, three years after Hurricane Maria devastated the island and killed 3,000 people. Democrats accused Trump of an election ploy to win the vote of Puerto Ricans who have fled the island to live in Florida. Trump says it has just taken a long time to come to terms on a deal and Democratic policies hurt the island before he was in office.
  3. Democratic donors coughed up $6.2 million in donations in the 9 p.m. hour after Justice Ruth Bader Ginsburg died on Friday, the most money raised in a single hour since ActBlue, the donation platform, was launched 16 years ago. Then they broke the record in the 10 p.m. hour with $6.3 million, a rate of $100,000 a minute.
  4. A woman was arrested at the U.S.-Canada border yesterday after sending an envelope with poison ricin addressed to the White House. It’s the third time in six years someone has tried to poison a president or member of the White House staff with ricin, following incidents in 2018 and 2014.
  5. Negotiations to lower drug prices fell apart between the White House and the Big Pharma industry when the president insisted on “Trump cards” being sent to seniors across the U.S., according to The New York Times. White House officials insist they didn’t plan to emblazon the president’s name on the cards, which could have been used for cash credits to buy prescription drugs, but pharma executives say they rejected the request because they viewed it as an 11th-hour attempt to boost Trump’s reelection prospects.

What D.C. is talking about.

Ruth Bader Ginsburg. On Friday night, the second woman to ever sit on the Supreme Court died at the age of 87 after a long battle with metastatic, pancreatic cancer. Ginsburg leaves behind a storied legacy of advancing women’s legal rights. She “is the rare supreme court justice whose most significant work was done before she joined the court,” Moire Donegan observed. “She changed the course of American law not as a supreme court justice, but as a lawyer, the founder and general counsel of the ACLU’s Women’s Rights Project.” After a fall in 2018, x-rays revealed two tumors on Ginsburg’s lungs, and she had been in and out of the hospital in the years since. In 1999, she beat colon cancer, and in 2009 she overcame pancreatic cancer.

Late in her life, Ginsburg became a progressive icon. Before Barack Obama nominated Sonia Sotomayor in 2009 and Elena Kagan in 2010, Ginsburg was the lone female Supreme Court justice, which seats nine judges when the court is full. In 2010, she became the most senior liberal justice on the court, and after a law student named Shana Knizhnik dubbed her “Notorious R.B.G.,” nicknamed after famous Brooklyn rapper Notorious B.I.G., Ginsburg’s legendary status only flourished on the left. Her dissenting opinions against conservative majorities were read widely, her face was plastered on t-shirts and tattoos, and her biting commentary was profound enough to earn her admiration and respect across the political spectrum.

Her notoriety only rose after a self-described “ill-advised” comment when she called President Trump “a faker” after his victory in 2016, an unusual step out-of-bounds in political commentary for a Supreme Court justice. Most famously, Ginsburg’s tenor and legal mind helped her develop a deep and lasting friendship with Antonin Scalia, the conservative justice who died in 2015 after a judicial career that was idolized by the right. In many ways, Scalia was her greatest rival on the court, yet one of her closest friends.

Following Scalia’s death, Republican Senate Majority Leader Mitch McConnell infamously refused to take up Obama’s nominee for a replacement, Merrick Garland, despite there being nine months until the election. The delay was a political success for McConnell, eventually resulting in a Trump win and a Republican defense of the Senate majority in 2016. Since Trump took office, he’s nominated and confirmed two judges — Neil Gorsuch and Brett Kavanaugh — swinging the court to a conservative 5-4 majority.

Now, though, McConnell’s decision to refuse to vote on a nominee is creating a difficult situation for Republicans who backed his decision in 2016. With Ginsburg’s death, the court is widely described as a 4-4 split, though Chief Justice John Roberts mostly sides with conservatives (making it a 5-3 conservative lean). A bitter fight is expected to confirm the next justice, all of whom serve lifetime terms. Democrats are accusing McConnell of gross hypocrisy for an attempt to confirm another Republican justice less than 50 days from the current election. Meanwhile, Republicans argue they have the constitutional authority and political obligation to nominate and attempt to pass a justice despite how close it is to an election.

Shortly before her death, Ginsburg dictated this statement to her granddaughter Clara Spera, which was shared widely amongst the press: “My most fervent wish is that I will not be replaced until a new president is installed.” McConnell and Trump have promised to both nominate and vote to install a new justice as soon as possible, and Trump vowed to nominate a woman to replace Ginsburg.


Agreed.

Both Republicans and Democrats spent the weekend remembering Ginsburg and celebrating her life on the court. She is one of those very few titans in the political world — like Rep. John Lewis — who earned the admiration of both her biggest supporters and greatest rivals. The weekend was full of deep, moving and detailed remembrances of Ginsburg by many in the legal professions, all of whom recognized her unending battle to advance the rights of women, to understand those she disagreed with and to disagree sharply, openly and often correctly when she saw fit. As the Conservative Justice Antonin Scalia wrote in 2015, her opinions were “always thoroughly considered, always carefully crafted and almost always correct (which is to say we sometimes disagree)… What only her colleagues know is that her suggestions improve the opinions the rest of us write, and that she is a source of collegiality and good judgment in all our work.”


What the right is saying.

The right is arguing it is imperative to nominate a replacement as soon as possible. The Wall Street Journal editorial board celebrated Ginsburg’s legacy, but the board rejected the notion of her dying wish, saying it “is not the Constitution’s command. The President has the power to nominate a successor as soon as he desires, and the Senate then has the power to confirm or not. The timing of that vote is a matter for the Senate to decide, and the current Senate can hold a confirmation vote even on the last day it is in session if it chooses.”

“Democrats are sure to raise as a precedent Mr. McConnell’s refusal, in 2016, to allow a Senate vote on Barack Obama’s nominee after the death of Justice Antonin Scalia,” the board wrote. “But that was a constitutional use of the Senate majority that Democrats would also have employed, as no less than New York Democrat and now Minority Leader Chuck Schumer had declared toward the end of George W. Bush’s second term.”

In early August, Dan McClaughlin predicted this mess, writing “if a Supreme Court vacancy opens up between now and the end of the year, Republicans should fill it. Given the vital importance of the Court to rank-and-file Republican voters and grassroots activists, particularly in the five-decade-long quest to overturn Roe v. Wade, it would be political suicide for Republicans to refrain from filling a vacancy unless some law or important traditional norm was against them. There is no such law and no such norm; those are all on their side. Choosing not to fill a vacancy would be a historically unprecedented act of unilateral disarmament. It has never happened once in all of American history. There is no chance that the Democrats, in the same position, would ever reciprocate, as their own history illustrates.”

“The Constitution is our nation’s highest law,” Hugh Hewitt said in The Washington Post. “It commits to the president the sole power to nominate a justice to the Supreme Court, and I expect President Trump to move rapidly to do just that now that Ginsberg has died — he told me on air on Aug. 11 that he would… The Constitution imposes no rule on the Senate as to when it can take up a nomination.”

Andrew McCarthy wrote that everything about this moment is political, and anytime a vacancy on the High Court opens he views all the claims around norms, precedent and propriety of the leading senators, administration officials, pundits and influential partisans as ridiculous.

“In reality, there are only two rules, both set forth in the Constitution: A president, for as long as he or she is president, has the power to nominate a person to fill a Supreme Court seat; and that nominee can fill the seat only with the advice and consent of the Senate,” McCarthy wrote. “That’s it. Everything else is posturing. Everything else is politics. There are no rules about what happens in the last year of a president’s term, nor codicils that hinge on whether the Senate is controlled by the president’s party or the opposition. For example, there was nothing inappropriate about President Obama’s nominating D.C. Circuit judge Merrick Garland after Justice Antonin Scalia died months before the 2016 presidential election; nor was there anything wrong with Senator Mitch McConnell’s holding his Senate majority together to block the nomination — against the caterwauling of the media-Democrat complex.”

What the left is saying.

Nothing is off the table. Democrats say the brazen hypocrisy of McConnell and Senate Republicans is enough to change the rules for good. If Republicans move forward with trying to insert a new justice, Democrats have vowed to “pack the court” — i.e. add justices and nominate liberals, which the Constitution does not prohibit — and abolish the Senate filibuster that requires a 60-vote threshold to pass legislation if they win the election in 2020. There’s even been chatter about attempting to impeach Donald Trump (again) or Attorney General William Barr to grind Congress to a halt to stop a nomination until the election.

In an editorial, The New York Times editorial board summarized Ginsburg’s legacy as a lawyer and judge, writing that Trump and “Mitch McConnell, the Senate majority leader, appear to be dead-set on replacing her with someone who would obliterate much of the progress she helped the country make.”

“The court now faces a serious crisis of legitimacy,” the board wrote. “Senate Republicans, who represent a minority of the nation, and a president elected by a minority of the nation, are now in a position to solidify their control of the third branch of government. The Supreme Court, with another Trump appointee, could stand as a conservative firewall against the expressed will of a majority of Americans on a range of crucial issues.”

Frank Bruni expressed little more than shock and rage at the circumstance we find ourselves in.

“I was prepared for Mitch McConnell’s hypocrisy, but his brazenness left me breathless,” Frank Bruni wrote in The New York Times. “Technically, yes, it’s Trump’s right to nominate a new Supreme Court justice as soon as he wants and for as long as he’s in office… McConnell, for his part, can absolutely try to hustle that nominee through Senate confirmation. But McConnell would be violating his own code, the one he adopted after Justice Antonin Scalia died in February 2016. McConnell then decreed that with an election just nine months away, President Obama should not be allowed to fill a court vacancy. The American people should first be allowed to speak through their presidential ballots in early November.”

“Now an election is little more than one month away,” Bruni added. “And that code — poof! — is gone.”

Michelle Goldberg asked if Mitch McConnell can be stopped.

“Mitch McConnell certainly has no intention of abiding by the so-called McConnell rule, an invention to justify the Senate’s refusal to consider Garland in March 2016,” Goldberg wrote in The New York Times. “His tortuous excuse is that his made-up rule is meant to apply only when the Senate and the presidency are controlled by different parties. Replacing a progressive icon on the Supreme Court with a hard-core reactionary — one who will overturn Roe v. Wade, decimate civil rights law and fully unshackle big business — is an existential matter for the right. It is both the culmination of decades of conservative activism and perhaps an insurance policy in case the 2020 election itself ends up being decided by the court, like Bush v. Gore.”

In The Washington Post, Dana Milbank crowed that Republicans couldn’t even wait until Ginsburg was in her grave to begin the process of replacing her — despite her dying wish for the opposite.

“Instead, some 80 minutes after her death was reported, Sen. Mitch McConnell (R-KY), a man without a shred of decency and seemingly without a soul, announced his intent to replace her as fast as possible, before the next president is sworn in,” Milbank said. “(Even President Trump showed more humanity at first, citing the traditional Jewish expression for the dead, “May her memory be a blessing,” with a Trumpian flourish: ‘May her memory be a great and magnificent blessing to the world.’) Sen. Lindsey O. Graham (R-S.C.) soon joined the Senate majority leader, announcing a 180-degree reversal from his position toward Obama Supreme Court nominee Merrick Garland in 2016, and somehow blaming the Democrats for his rank hypocrisy and dishonorable conduct.”

“Democrats and progressives, thus provoked, responded with threats of revenge: eliminating the filibuster, packing the court if Joe Biden wins, even adding states to the union,” Milbank said. “And some of my colleagues in the media, regrettably, furthered the immediate politicization of Ginsburg’s death or demanded to know senators’ positions on the new nominee — before Ginsburg, whose dying wish was that the next president name her replacement, was even in her grave. Aren’t we better than this?”


My take.

Remember when we thought the election would be about Russia interference? And then about the Trump economy? And then impeachment over Trump for insisting Ukrainian officials investigate Joe Biden? And then over COVID-19? And then over civil unrest and Black Lives Matter protesters? And then over the Postal Service? And now it’s the Supreme Court — and it will almost certainly take another turn or two. I said it when we were 90 days out from the election and then 60 days out from the election and I’ll say it again now, because it’s always true until the final two weeks: there are still more plot twists to come, so buckle up.

On 16 occasions, a vacancy has opened on the Supreme Court less than 365 days before an election, according to the New York Times. And every single time a president has put forward a nominee. Of those 16, eight were confirmed, seven failed, and Ginsburg is yet to be decided. Only one vacancy has opened up closer to an election than Ginsburg’s, in 1864, and the Senate confirmed a replacement shortly after the election.

So, yes, we are less than two months from an election. And yes, we just witnessed a similar scenario during the last cycle where McConnell refused to vote on a nominee. But McCarthy is right: the only thing about this that would be historically unprecedented would be if Trump did not put forward a nominee and if the party controlling the Senate did not at least try to push that nominee through.

Democrats are right to call out the hypocrisy and cynicism of McConnell. But deep down they wish he was on their team and know that if they had the power they would undoubtedly do the same thing. And remember: McConnell’s move to refuse to vote on an Obama justice in 2016 came with extraordinary risk. Obama nominated Merrick Garland for the court because he was a palatable moderate — a choice Obama understood would turn up the heat on Republicans to vote on him. He was also 62. If McConnell’s refusal had backfired and Hillary had won the 2016 election and Democrats had taken the Senate, they would have pushed through a younger, more liberal justice and McConnell’s plan would have blown up in his face.

But elections have consequences. In this case, the consequences are as extreme as one can imagine: President Donald Trump will get to nominate and likely confirm three justices for the Supreme Court, the most since Ronald Reagan placed four on the court during his two term presidency.

Trump is right to nominate a justice to fill the vacancy; he has the constitutional authority and the political capital to do it. McConnell is a raging hypocrite of an order tough to put into words, and his modification of his position — that the Senate majority should get to choose what to do — is a laughable revision of his main point. The thrust of his argument in 2016 was the opposite of his argument now, which is that the American people should have a say in choosing the next justice this close to an election.

At the same time, the Senate Republicans who followed McConnell in 2016 have a chance to show some consistency. Sens. Lisa Murkowski (R-AK) and Susan Collins (R-ME) already have vowed not to ram through a new justice until after the election. Sen. Lindsey Graham (R-SC), who is the chairman of the Judiciary Committee, said in 2016 that delaying a vote in an election year would be the “new rule”, then looked into a camera and declared: “I want you to use my words against me.” Well, consider this me using Graham’s words against him: he has broken his word and performed another act of brazen hypocrisy that’s tough to encapsulate in words. We shouldn’t expect anything less from a senator who has repeatedly lied, flip-flopped and ducked his own promises in an effort to keep Trump happy. And I won’t ever take Graham at his word again.

In total, about 17 GOP senators promised in 2016 not to confirm a justice in an election year. Nearly all of them have now broken that promise, citing everything from the treatment of Brett Kavanaugh to the simple fact that they have the power to push a vote through. Of course, there’s plenty of hypocrisy on the left, too. Joe Biden shared a similar “no nominee during an election year” stance in 1992, which the GOP used against him in 2016, when Obama tried to confirm Merrick Garland. Now Biden is going from his 2016 position of voting on a new justice in an election year, to his 1992 and 2020 positions of waiting until after the election.

But that’s because McConnell changed these rules — and Republicans swore to them. So, what should happen is Trump and McConnell should do what we all expect, abandon their previous positions and force a floor vote. And there should be four Republicans out of 17 who have the intellectual honesty and ethical fortitude to stick to their word and reject the vote, based on the principals they stated so clearly, loudly, and unambiguously on the record four years ago.

What will happen is a different story. McConnell has a 53-47 majority in the Senate. He lost two senators already (making it a 51-49 vote) and he can only afford to lose three. Losing three would mean a 50-50 tie breaking vote from the vice president, Mike Pence, who would confirm a Trump nominee. Mitt Romney has still not stated his position though he’s one of those 17 senators (in other words, he’s keeping open the possibility he’ll vote for the nominee). It’s hard to find any other Republican who will defect. Sen. Lamar Alexander (R-TN) is retiring and was considered a top candidate to stick to his word, but he’s already balked. Sens. Chuck Grassley (R-IA) and Cory Gardner (R-CO) both promised to avoid an election-year nominee and both are laying low for now.

The wildcard here is the actual election. Republicans may not want to rush the vote, because if they get it done before November 3rd, there are legitimate concerns it will reduce the urgency on the right to vote for Trump. Pro-life conservatives and Republicans who want a rightward shift in the court are crucial to Trump winning and many have reservations about him. But waiting creates other problems: Biden could win the election, Republicans could lose the Senate, and Republicans would then have to ram through a nominee between November and January, before a new Senate and president are inaugurated. Democrats, set to take over control of the White House and Senate, would have little recourse besides public pressure.

There’s also the Arizona senate race. Democrat Mark Kelly is facing Republican Martha McSally in a special election and he’s leading in the polls. Because it’s a special election, Kelly could defeat McSally and be seated in the Senate six weeks before the rest of the new Senate — on November 30th. In other words, if Kelly wins, the Republican majority goes from 53-47 to 52-48 at the end of November, which shortens the time they have to nominate and confirm a new justice. With Kelly in and Murkowski and Collins off the board, it’s a 50-50 split (meaning a Republican nominee would get confirmed with Pence’s tiebreaking vote). But if Romney, Gardner, Grassley or any other Republican sticks to their word, then Democrats can stop the nominee 51-49, and bring forward their own nominee in the event Biden wins. Again: get your popcorn.

Finally, I think it’s worth noting the real-world implications here. First, remember the scenario of an election tie I laid out two weeks ago? It gets a lot, lot, more difficult to see a resolution if the Supreme Court is split and can’t resolve disputes. Just a thought. I’d say the odds of McConnell getting this done are better than 50%, which also means the Affordable Care Act very well may be on its deathbed — meaning tens of millions of people are going to lose their health insurance unless Republicans magically produce a replacement they’ve been promising for three years but have been unable to put together. It also means that regardless of the election outcome, conservatives will have succeeded in getting a stranglehold on the federal courts that will restrain basically every single liberal pipe dream for the next two decades: climate change action, gun control, government-controlled health care, abortion rights. The future of these issues tilt toward the Republican party’s will, regardless of who wins in 2020, if this judge gets confirmed. That’s a reality McConnell and Trump both understand.


P.S.

My favorite Ginsburg quote of all time, one that’s relevant today more than ever: “Fight for the things you care about, but do it in a way that will lead others to join you.”


A story that matters.

The rising costs of drug prices are not slowing down. Policymakers have been laser-focused on insulin, which is used by seven million Americans to manage diabetes, but the price doubled between 2012 and 2017. Some limited action has been taken. In the middle of the pandemic, “seven states have enacted insulin payment caps of less than $100 per month,” The Washington Post reported. “In March, President Trump’s health officials announced a Medicare test project limiting seniors’ monthly out-of-pocket costs to $35. In July, he signed multiple executive actions targeting insulin and a handful of other medications.” But the temporary relief is not a long-term fix, and Congress can’t agree whether the government should have the ability to set prices in the industry or limit price increases. 17 other top-selling drugs also doubled in price between 2012 and 2017: “Many are household names: Lipitor and Zetia for cholesterol, Advair and Symbicort for asthma, Lyrica for pain and Chantix for smoking cessation.”


Numbers.

  • 43. The number of days until election day.
  • 9. The number of days until the government shuts down again because of a lack of a funding bill.
  • 8. The number of days until the first presidential debate.
  • 12%. The percentage of Latino voters who remain undecided, according to a new Wall Street Journal poll.
  • 38%. The percentage of Americans who say that they and their family have “a lot” or “some” in common with recent immigrants who have come to the United States in the past few years.
  • 59%. The percentage of Americans who say that they and their family have “just a little” or “nothing”  in common with recent immigrants who have come to the United States in the past few years.
  • 53%. The percentage of Americans who have heard or read nothing at all about QAnon.
  • 74%. Of the Americans who have heard or read about QAnon, the percentage who think it is a very or somewhat bad thing for the country.
  • 20%. Of the Americans who have heard or read about QAnon, the percentage who think it is a very or somewhat good thing for the country.

Don’t forget.

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Have a nice day.

A solar forecast from scientists had some… good news? Yes, you read that right. The sun is entering a new sunspot cycle, and unlike COVID-19, “killer hornets” the size of your dog or apocalyptic wildfires, this piece of environmental news brought some good fortune: it’s going to be boring. Sunspot cycles are important because they’re tied directly to the sun’s magnetic fields, which set off bursts of radiation called solar flares. Those flares can hit the earth and destroy satellites or cause massive power blackouts, so scientists are keeping a very close eye on them. But a global panel says this next cycle actually looks calm, so we can exhale for now. It’s the least ‘2020’ news I’ve read in a long time.

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Isaac Saul

I'm a politics reporter who grew up in Buck County, PA — one of the most politically divisive counties in America. I'm trying to fix the way we consume political news.

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