We should not be talking about politics today. We should be honoring and mourning the life and death of the Notorious RBG, who was far more than a late-career cultural icon. She was a giant of the court. Even before joining the Supreme Court, she was the diminutive giant whose outsized role was critical to bringing equal justice for women and everyone else.
Her name will be spoken with reverence for a hundred years, by which time those who immediately politicized Ruth Bader Ginsburg’s death — led, of course, by the Shameless Boys, Donald Trump and Mitch McConnell — will have long ago been consigned to Dante’s Circles of Hell. You can be sure they’ll have made a long stop in the ninth circle, Treachery.
But now, moving to a slightly different text, we will soon reach judgment day. Trump and McConnell have already made their pacts with the devil. But judgment day will come soon enough for Cory Gardner, whose political life may swing on this vote.
In the least surprising news of the day, when Gardner was asked Saturday about the Supreme Court, he said, as I just did, it was too soon after Ginsburg’s death to talk about politics. The difference between my take and Gardner’s is that I meant it. For Gardner, what’s never too soon is to dodge any question that requires him to take a stand.
He could have said something as simple as this: “I stand by what I said four years ago.” When Merrick Garland was nominated by Barack Obama 10 months before the election in 2016, Gardner said it was too close to the election to confirm him. Trump’s nominee will come six weeks before Nov. 3. All the dodging in the world won’t change that fact or the hypocrisy Gardner would embrace if he aligns himself this time with McConnell and Trump. [Update: Gardner did just that on Monday, announcing he would vote to confirm “a qualified nominee.”]
If you think the political moment is ugly now, just wait. The ugliest moment of this political season to date was probably the crowd-clearing violence perpetrated by Trump and Bill Barr in the service of an upside-down-Bible photo-op. But Ginsburg’s death — not unexpected, but no less painful — brings the darkness of our time to bear. We will see a Supreme Court fight like no other, darker than Bork’s, darker than Thomas’, darker than Kavanaugh’s, far more noxious than the wildfire smoke that hangs over much of the nation.
Trump hopes that nominating yet one more young, conservative justice to the court — one that will solidify an anti-Roe vote when the time comes, an anti-Obamacare vote, a turning back of LGBTQ rights and voter rights, among others — can save his election chances. It will do more than turn out his base. It will stampede them. And, of course, the drama would divert at least some of our attention from Trump’s failures on COVID and the nearly 200,000 dead, on the economy, on racial injustice and a host of other issues.
Will Democratic voters match that fervor? History says no. But history has never seen the like of Donald Trump. And we will hear over and again Ginsburg’s deathbed plea for the next president to fill the court’s vacancy. I don’t think that was meant to move either Trump or McConnell, but to move anyone with a working conscience.
My guess is that this is a terrible bet by Trump, that the unseemly nomination would turn anyone against him who is not already firmly settled in the base. How do you think this nomination would play among suburban women — or as Trump likes to say, housewives — in November? But, as we keep reminding ourselves, no one knows anything in 2020. We don’t even know whether there would be a vote in the six weeks left before Election Day or, even more strangely, left for a lame duck Senate session to consider. New senators aren’t seated for two months after Nov. 3.
But here’s one thing we can be pretty sure of for 2021. If Trump and McConnell get their way and still lose the Senate and White House in November, Democrats will get to work immediately on Supreme Court “reform,” meaning, in the vernacular, packing the court. As it stands today, five of the justices have been nominated by presidents who had lost the popular vote, although two of Bush’s came after he had been reelected. This would be the sixth. And the early guessing on Trump’s pick, which he’s expected to announce quite soon, is Judge Amy Coney Barrett of the 7th Circuit, a clear choice for anti-abortion conservatives.
McConnell — who, of course, blocked Garland 10 months before the 2016 election, saying the next president should be the one to decide — is making the bet that this is his best chance to keep hold of the Senate in November. Chuck Schumer tweeted out these words in reply: “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.”
I’m sure many of you recognized that this was high-level trolling, since Schumer’s tweet was a verbatim quote of what McConnell had said in 2016. It was raw politics then and it’s raw politics now, and the question to consider is whether we can ever wash the slime of hypocrisy away.
Which brings us back to Gardner. One of the cheapest tricks in politics is to say one person is the deciding vote for or against a policy when that person is one of many. But in this case, as in during the impeachment trial when the vote came to call witnesses, Gardner’s will be a critical vote and very possibly the critical vote.
If four senators vote against the nomination, it fails. Susan Collins has said she’s a no. Lisa Murkowski went on record just hours before Ginsburg’s death saying she would not support a nomination that comes this late. I’d be surprised if Mitt Romney, who hasn’t said anything as of this writing, weren’t a third objector, assuming Collins and Murkowski stick to their word.
Lindsey Graham, who has already destroyed his legacy, said in 2016 that the rules had changed, but he has already changed his mind. Lamar Alexander, who’s retiring? We saw his failed performance at the impeachment trial. Chuck Grassley has mentioned reservations. One more twist: If Democrat Mark Kelly defeats Martha McSally in a special election in Arizona, he would be seated by Nov. 30. That would mean Democrats might need one less Republican to turn if the vote comes in the lame-duck session.
For some vulnerable GOP senators, a Supreme Court fight looks like an advantage. Iowa’s Joni Ernst, McSally and North Carolina’s Thom Tillis have already announced their enthusiasm for a vote.
Where it won’t be an advantage is in Colorado. At this point, Hickenlooper is favored to beat Gardner. A recent poll had Gardner five points down, but that’s the closest any poll has shown. Democrats tell me that their internal polling shows John Hickenlooper leading by 9 to 11 percent. The word from Republicans is that the National Republican Senatorial Committee hasn’t given up on Gardner and expects him to gain ground when debating Hick, a notoriously poor debater.
But imagine Gardner dodging the Supreme Court question at a debate. It would be a gift for Hickenlooper. Any such non-answer would dominate the coverage.
What seems clear to me is that a vote to confirm is a death knell to Gardner’s election chances. The senator has to be hoping for a post-election, lame-duck vote, meaning that we’d go to the polls or, more likely, to the mailbox without knowing what Gardner would do. I doubt that would work. I’d like to think that refusing to answer the question would be even more damning for Gardner than answering it. But it’s 2020. And who the hell really knows?