Herewith some unconnected lukewarm takes (since I trust they have been expressed elsewhere) on RBG's death and the politics of filling her seat.
I. The place of these confirmation struggles in American political life is so big as to blot out all else. Possibly this could work to Trump's advantage. We have just passed coronavirus death number 200,000. We have about 4% of the world's population but more than a fifth of the cases and deaths. Naturally, Team Trump wants to change the subject, and now the mortality of Supreme Court justices has performed the awkward transition.
RBG herself, her life and legacy, is another regrettable casualty of the total eclipse of the sun. She is one of the great Americans of our time, but on the news the tributes have barely begun taxiing on the runway when suddenly you are staring at the mug of Mitch McConnell. Hurry, the barf bag! Maybe time will supply the remedy. Linda Greenhouse's New York Times obituary is a start.
II. The obituary recalls that, during Obama's second term, RBG "shrugged off a chorus of calls for her to retire in order to give a Democratic president the chance to name her replacement." One conclusion that ought to be drawn from this episode is that, to the degree such actuarial and political projections have merit, it shows that the system as it currently operates should be overhauled. I wonder if genetic testing of potential nominees isn't the next escalation in the vetting process. Maybe I shouldn't assume that my dystopia hasn't already been realized.
III. Supposing RBG had heeded "the chorus." By what date in Obama's second term would she have had to announce her retirement in order for him to be able to name her successor? We know, from the debacle relating to Justice Scalia's death and the Republican Senate's refusal even to consider the nomination of Merrick Garland as his successor, that at some point President Obama lost the power to fill Supreme Court vacancies. It's reasonable that RBG would have wanted to serve as long as possible, consistent with the actuarial and political considerations recommending retirement. To execute the strategy prescribed by "the chorus," she therefore would have had to know the date on which President Obama's constitutional prerogatives expired. But there is no such date. She would have been trying to play a game, the rules of which are both vague and fluid. The ambient absurdity of the situation is more proof that the system needs overhauling.
IV. Regarding the fluidity of the "rules": before, the president could not fill a vacancy occurring nine months before an election; now, the president can fill a vacancy occurring less than two months before an election. The jesuitical distinctions advanced to defend against hypocrisy only highlight the hypocrisy. As everyone knows, the lone "principle" is naked power. Where does this end? Then, Republicans had the power to eighty-six an Obama appointee. Now, they likely have the power to confirm a Trump appointee. Tomorrow, the Democrats may have the power to expand the number of justices to thirteen by appointing and confirming four woke 38-year-olds whose only hobby is a fanatical devotion to physical fitness. Legislators, when not maneuvering for power, deliver encomiums on The Rule of Law. Please, spare me the lectures and instead reform a plainly broken system.
V. If you want to talk about root causes of disease, one is that the Supreme Court isn't really a law court so much as it is a legislature on steroids. When the president and 535 members of Congress can't agree, the Supreme "Court" decides, often by a 5-4 vote. When a vacancy in the 9-member super legislature occurs, the stakes are so high, and the system so broken, that the absurdity of the whole enterprise comes into view. Chief Justice Roberts is said to fret that the public is losing confidence in the Supreme Court as an institution. He is therefore inclined to subordinate his conservative legal principles to his judgment about what damage will occur if the public concludes, correctly, that the justices are thinly disguised partisans in the same war that wasn't settled in the Capitol building. Assuming he's a smart man, it seems impossible that he should not comprehend that his solution of moving his own vote to the center tends to confirm the truth of the proposition he seeks to deny.
VI. The looming struggle, with the likely consequence that passions will be inflamed and the losing side set upon a course of retribution, was precipitated by the death of a distinguished woman 87.6 years old. Had she lived 87.9 years, there would be almost no issue: either Trump would have been reelected (in which case it's clear that he gets to appoint the next justice) or Biden would have been elected (in which case it's clear that he makes the appointment). One need not disavow a healthy respect for the role of chance in human affairs to assert that this is crazy. The Constitution has been amended to specify a process in the event of the death or disability of the president. Yet for some reason, regarding events much more likely to occur, and which have now occurred twice in less than five years, we are satisfied instead to see who can shoot their piss higher in the air.
VII. The brokenness I'm describing is erected upon a crumbly foundation. In theory, people go to the polls and indicate by ballot which presidential candidate they'd like to fill vacancies on the Supreme Court for the next four years. In 2016, 66 million indicated Clinton, 63 million indicated Trump. Yet Trump is on the verge of making his third life-term appointment to that 9-member super legislature. Well, "states matter" we are told—as if the verdicts of the Supreme Court did not apply across state lines. The president is constrained by the "advice and consent" of the Senate, and in the days since Justice Ginsburg’s death some Republican senators have been running their mouths about how "the American people" have put them in the majority for the express purpose of confirming conservative judges. This elides the fact that the 53 Republican senators represent fewer Americans than the 47 who caucus with the Democrats. A minority of the citizens' votes is the source of Republican power—in the legislative branch, in the executive branch, and in the judiciary.
But do go on, President Trump, complaining about how the game is rigged against you. LOL!
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