“The two real political parties in America are the Winners and the Losers. The people don’t acknowledge this. They claim membership in two imaginary parties, the Republicans and the Democrats, instead.” ~ Kurt Vonnegut, Jr.
“One of the first businesses of a sensible man is to know when he is beaten, and to leave off fighting at once.” ~ Samuel Butler
“One must be a god to be able to tell successes from failures without making a mistake.” ~ Anton Chekhov
“There are some defeats more triumphant than victories.” ~ Michael de Montaigne
But this was a defeat. Democrats have lost any real influence on the Supreme Court. It’s a done deal. Peter Baker and his team at the New York Times make that clear:
President Trump appeared to secure enough support on Monday to fill the Supreme Court seat left open by the death of Justice Ruth Bader Ginsburg without waiting for voters to decide whether to grant him a second term in what would be the fastest contested confirmation in modern history.
As Mr. Trump promised to announce his choice for the seat by Friday or “probably Saturday,” after memorial services for Justice Ginsburg, several key Senate Republicans threw their support behind a campaign-season dash to replace the liberal jurist by the election on Nov. 3 with a conservative who would shift the court’s ideological center to the right for years to come.
And that was that. It was all over but for the gleeful gloating:
“We’ve got the votes to confirm Justice Ginsburg’s replacement before the election,” Senator Lindsey Graham of South Carolina, the Republican chairman of the Senate Judiciary Committee and a close Trump ally, said Monday night on Fox News. “We’re going to move forward in the committee; we’re going to report the nomination out of the committee to the floor of the United States Senate so we can vote before the election.”
That, however, was only aspirational:
Such a timetable would leave only 38 days for the Senate to act and, as a practical matter, even less time because it is highly unlikely that Republicans would want to vote in the last few days before an election in which several of them face serious threats. Some senior Republican senators were still expressing caution about such an accelerated timetable even with the votes seemingly in hand, and Senator Mitch McConnell of Kentucky, the Republican leader, has not publicly committed to a pre-election vote.
Lindsey Graham had gotten a little too gleeful, but this was over:
The president was buoyed after Senators Charles E. Grassley of Iowa and Cory Gardner of Colorado, two of three remaining Republicans who might have opposed filling the seat, announced that they would support moving ahead with a nomination even though they refused to consider President Barack Obama’s nomination in an election year in 2016. That left only Senator Mitt Romney of Utah considered undecided, but even without him, it appeared to guarantee at least 50 Republican votes to move ahead, with Vice President Mike Pence available to break a tie.
With polls showing Mr. Trump trailing former Vice President Joseph R. Biden Jr., the Democratic presidential nominee, the president insisted on pressing ahead without waiting for an election he could lose. “I’d much rather have a vote before the election because there’s a lot of work to be done, and I’d much rather have it,” Mr. Trump told reporters. “We have plenty of time to do it. I mean, there’s really a lot of time.”
He knows this will happen just as he wishes, and the Washington Post’s Paul Kane and Rachael Bade explain the inevitable:
Senate Democrats and their liberal allies confronted the grim reality Monday that they have no path to blocking President Trump’s pending Supreme Court nomination other than a political pressure campaign that peels away a minimum of four GOP votes.
Deep into their sixth year in the minority, Democrats can use some procedural tactics that might briefly slow the confirmation process, but if at least 50 Republicans approve of Trump’s pick to replace the late Ruth Bader Ginsburg, that nominee is certain to be seated.
And that makes this a lost cause:
Publicly, Democrats vowed to fight with every fiber in the Judiciary Committee confirmation hearings and on the Senate floor, as the liberal alliance of outside interest groups began planning how to mount a campaign that would try to turn Republicans against the nominee. But the process ahead leaves no room for error, and even a perfectly executed pressure campaign could still fall short.
“We’re in a situation where Mitch McConnell is the only person in this building that can decide when and whether and how to move the nomination forward. My hope is that there will be enough Republicans to stop it, but I don’t think the likelihood of that is high,” Sen. Michael F. Bennet (D-Colo.) said.
It wasn’t high. Some things are impossible. All that was left was a tidal wave of television ads from both sides and an odd effort to shame the shameless:
Senate Minority Leader Charles E. Schumer (D-N.Y.) appeared to recognize the limited leverage. In a floor speech Monday, he didn’t threaten any retaliatory tactics per se, should Republicans ram a nominee through before the election. But he sought to shame his GOP colleagues by holding up their previous words about election-year Supreme Court nominations to suggest they were being insincere.
Confirming a replacement, Schumer argued in remarks that will set the tone for the coming confirmation clash, could upend the Senate entirely, spelling “the end of this supposedly great deliberative body.”
“If a Senate majority over the course of six years steals two Supreme Court seats using completely contradictory rationales, how could we expect to trust the other side again?” he asked. “How can we trust each other if, when push comes to shove, when the stakes are the highest, the other side will double-cross their own standards when it’s politically advantageous?”
Assume that Republicans snickered. Comity is for losers. Republicans take what they want. Republicans are winners. Schumer was such a total loser. But he had no other choice:
Some Democrats are pushing to go further than a public pressure campaign against the GOP. On Sunday, Rep. Alexandria Ocasio-Cortez (N.Y.) said the party should leave open the possibility of impeaching Attorney General William P. Barr, hoping it would force a trial in the Senate that would prevent the confirmation until at least after the Nov. 3 elections. Impeachment rules require that the upper chamber take up articles of impeachment immediately, so a House impeachment power play could gum up the confirmation process, at least in theory.
“These are procedures and decisions that are largely up to House Democratic leadership,” Ocasio-Cortez told reporters. “But I believe that, also, we must consider, again, all of the tools available to our disposal and that all of these options should be entertained and on the table.”
House Speaker Nancy Pelosi (D-Calif.) wouldn’t rule out the possibility when asked about it Sunday. But multiple House Democratic officials, speaking on the condition of anonymity to talk frankly, downplayed this possibility, arguing that it would look overtly political.
They want to be good examples. They want to play nice. Donald Trump wanted to twist the knife:
President Trump routinely passes along false and misleading information that has been circulating online. On Monday, he appeared to be the one starting it.
Shortly before Justice Ruth Bader Ginsburg died, she made a request about what should happen to her seat on the Supreme Court. “My most fervent wish is that I will not be replaced until a new president is installed,” Justice Ginsburg said, according to NPR, which reported that the 87-year-old justice dictated the note to her granddaughter, Clara Spera, in the final days of her life.
But during a “Fox & Friends” interview on Monday morning, President Trump claimed, without evidence, that Justice Ginsburg’s “dying wish” might actually have been written by a top Democrat like Representative Adam Schiff of California, Senator Chuck Schumer of New York or Speaker Nancy Pelosi of California.
“I don’t know that she said that, or if that was written out by Adam Schiff, and Schumer and Pelosi,” Mr. Trump said. “That came out of the wind. It sounds so beautiful, but that sounds like a Schumer deal, or maybe Pelosi or Shifty Schiff.”
And for once he made something up all on his own:
Questions about the legitimacy of Justice Ginsburg’s “dying wish” were not circulating online in any significant way before his Fox News appearance. But after the appearance, social media has filled with false claims echoing Mr. Trump’s conspiracy theory, and taking it even further… On Twitter, users continued to spread their false claims that Justice Ginsburg dictated the note to her “eight-year-old granddaughter.” (Ms. Spera is a lawyer who graduated from Harvard Law School in 2017.) They have cast doubts on the integrity of NPR’s reporting. (Nina Totenberg, the NPR reporter who published the detail about Justice Ginsburg’s last wish, is a longtime Supreme Court reporter who has been close to the Ginsburg family for decades.) And they have sought to portray Democrats spreading false rumors about Justice Ginsburg’s death as part of a political power grab.
In an appearance on MSNBC on Monday, Ms. Totenberg confirmed her account of Justice Ginsburg’s statement, and said that others in the room at the time witnessed her making it, including her doctor. “I checked,” Ms. Totenberg added, “because I’m a reporter.”
Mr. Schiff, one of the congressional Democrats Mr. Trump speculated might have invented Justice Ginsburg’s request, responded on Twitter, saying “Mr. President, this is low. Even for you.”
Assume that Trump smiled and looked thankful – “Yes, I know.” Trump was twisting the knife to impress his base. He doesn’t want the vote of any American who believes in all that common decency crap. He and his base know that common decency is for losers. At least that’s what Frank Bruni argues here:
I was prepared for Mitch McConnell’s hypocrisy, but his brazenness left me breathless. He pledged a speedy Senate vote on a Trump-nominated replacement for Ruth Bader Ginsburg less than two hours after news of her death broke.
He couldn’t have waited, I don’t know, six hours? A day? Out of respect?
Silly question. Silly me. I sometimes forget the era we’re living in and the president we’re living under. McConnell understands that neither is about propriety, procedure, precedent. They’re about taking whatever can be taken and exploiting whatever can be exploited.
Rules are for fools. To the cheaters go the spoils. That’s President Trump’s credo. And he hasn’t been proven wrong yet.
And this is no different now:
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 – and he indeed signaled in a tweet on Saturday morning that he wanted to move forward “without delay.” 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. And that code is gone.
Bruni, however, is not surprised at all:
McConnell’s quickness to abandon it arises principally from his own unscrupulousness but owes something as well to his confidence about Trump’s ethically inverted inclinations, which are that it matters only whether you win or lose – not how you play the game.
Bruni is bitter, but Lili Loofbourow is more thoughtful than that:
We shouldn’t be here. We have institutions and norms and precedents, so what should happen next is almost absurdly plain. Senate Majority Leader Mitch McConnell made his thinking on the subject quite clear back in 2016, when Supreme Court Justice Antonin Scalia died in February, nine months before the election. “The American people should have a voice in the selection of their next Supreme Court Justice,” he said. “Therefore, this vacancy should not be filled until we have a new president.”
There shouldn’t have been any mystery about what Mitch McConnell – of all people – would do when a Supreme Court vacancy opened up six weeks (rather than nine months) before Election Day of 2020.
And there wasn’t.
That’s because Mitch is an empty man:
Shortly after Ginsburg’s death was announced, McConnell declared his intentions: Trump’s nominee would receive a vote in the Senate, and though he left the timing slightly unclear, he has no intention of letting the will of the American people (who have already started voting) determine what should happen. He made quick work of the optimists on Twitter suggesting that he surely wouldn’t be so hell-bent on total power that he’d risk destroying the country by breaking the precedent he himself had articulated.
Wrong. He would. And anyone who took him at his word when he rejected Merrick Garland’s nomination was made a fool when he reversed himself on the question of whether (to quote the man himself) “the American people should have a voice in the selection of their next Supreme Court Justice.”
In short, he lied, and anyone who had actually believed him is a naïve and rather pathetic fool. That’s how Loofbourow sees it, and she doesn’t like it:
I want to pause here to note, humbly, that it is wounding to watch a public servant reduce those who take him at his word to fools. I mention that not because it “matters” in any sense McConnell would recognize, but because it is simply true that this nation’s decline accelerates when the conventional wisdom becomes that believing what the Senate Majority Leader says is self-evidently foolish.
The chestnut that politicians always lie is overstated. A society depends on some degree of mutual trust. One party has embraced nihilism, pilloried trust, and turned good faith into a sucker’s failing in a sucker’s game.
That’s the party of winners, which some find hard to believe:
Many political reactions at present seem to orbit around the question of whether an unwanted outcome was unexpected. “And you’re surprised?” is a frequent response to some new instance of Trumpian corruption. This brand of cynicism has spread, quite understandably: It’s an outlook that provides some cognitive shelter in a situation that – having historically been at least somewhat rule-bound – has one side shredding the rules and cheering at how much they’re winning. Folks who at one point gave Republican declarations of principle the benefit of the doubt (I include myself) feel like chumps now. Conversely, the cynical prognosticators who used to seem crabbed and paranoid just keep getting proven right. Whatever the worst thing you imagine McConnell doing might be, he can usually trump it.
Mitch has helped make the world a dark place now:
A former White House official told the New Yorker’s Jane Mayer for a piece in April that McConnell reassured donors that he would install a Supreme Court justice for Trump regardless of how close to the election Ginsburg’s death might be. He apparently referred to the prospect of replacing Ginsburg in the event of her death as “our October surprise.” In 2019, McConnell gleefully tweeted a photo of some tombstones, one of which had Merrick Garland’s name on it – hours after a mass shooting in El Paso, Texas, in which 23 people died. He has said that stopping Garland’s nomination is the proudest moment of his career. It’s uniquely painful that this is the person architecting Ginsburg’s replacement in violation of his own contemptible theories.
But of course that’s what makes him a winner, and what makes us all cynics:
I am not saying anything new here. But what I am interested in, because I think it must be understood, and because the stakes of it have never been higher, is what McConnellizing does, affectively, to so many American citizens. What it feels like, in other words. We are overdue for a real reckoning with what it means to be degraded by our own leadership. And make no mistake: It is degrading when people lie to you openly and obviously. Leaving the polity aside for a moment, it’s the kind of emotion we humans aren’t great at coping with. Sometimes we react by snorting at anyone who expects any better (that is again the “you’re surprised?” cynicism). But if you can’t cover it with cynicism, it simply hurts.
So there’s stuff like this:
Here is the justification McConnell offered shortly after Ginsburg died for violating his own rule:
“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.”
This last sentence – which you will recognize as the heart of McConnell’s argument – is a lie. But before I supply the dull fact proving that it is a lie, I’d like us to pause and notice the extent to which whatever I am about to say will not factor into how you feel reading the above. Whatever I say, it will not provide you relief for me to demonstrate that this tortured reasoning McConnell supplied is horseshit. You are already meant to understand it as horseshit.
That’s the insult. That’s where one part of what I guess we could call patriotic pain comes from.
Oh, and the dull fact:
In 1988 (an election year!), the Democratically-controlled Senate confirmed Anthony Kennedy – President Ronald Reagan’s nominee to the Supreme Court. McConnell tried to circumvent this reality by crafting his new rule to exclude any vacancy “that arose” in an election year (Lewis Powell retired in late 1987).
That hardly matters, but Loofbourow says this does:
I think we have a habit of misnaming political experiences in ways that help us metabolize loss. I think, for example, that we have a bad habit of calling McConnell’s double standard – which will be devastating to a country already struggling through various legitimacy crises – “hypocrisy.” And sure, step onto Twitter after Lindsey Graham also unabashedly went back on his own word and you’ll see many a person rolling their eyes at anyone pointing out that Republicans are hypocrites, as if it matters.
One can sympathize with the eye-rollers – of course hypocrisy doesn’t matter. But that’s mostly because hypocrisy isn’t the word for what this is. Hypocrisy is a mild failing. It applies to parents smoking when they advise their kids not to for their own good; it does not apply to parents lighting the family home on fire for the insurance money while high-fiving each other over how stupid their fleeing children were for thinking anything they told them was true.
And that’s what this is:
When Ginsburg died, those whose rights she championed were caught in a cruel double bind. Raging against the indecent replacement effort feels wrong, because raging before it happens can feel like implicitly conceding. Treating the matter dispassionately, on the other hand, sensibly pointing out that McConnell has stated clearly what should happen, means granting him a good-faith reading he does not deserve. Thanks to the swiftness with which he declared his intentions, we are no longer under any obligation to attempt the latter. All that remains is to let honest anger do what it must.
And that would be this
It will not help to call the leadership we have right now hypocrites; they will not care, and I doubt the charge will motivate the people who need to be motivated much. But insofar as our own reactions are concerned – and while we think about how to counter an obvious and ugly attempt to steal the Supreme Court seat of a feminist champion of equal rights even as Americans have already started voting – it may help to register the lies they tell you as the calculated insults to your intelligence and to your citizenship and to your country that they are.
Fully witnessing and registering insults and degradation is more painful than sneering that you aren’t surprised. But I’ll be blunt: People are more willing to fight people who insult and degrade them than they are to fight mere “hypocrites.”
We deserve better than this.
Eugene Robinson agrees and suggests that we let our honest anger do what it must:
This is a moment to get mad and to get even. The way to do that is to crush President Trump and pulverize the Republican Party in the coming election.
Trump has the power to name a replacement for Justice Ruth Bader Ginsburg, who died last week. He says he will nominate a woman, surely an archconservative just raring to kill the Affordable Care Act and reverse Roe v. Wade. The GOP-led Senate has the power to confirm her. And because it can, we should expect that it will.
Doing so would be hypocritical, given the way Republican senators held up Merrick Garland’s Supreme Court nomination, cynical and corrosive to the very idea of democracy. But so what? We’re talking about Trump, who desperately wants voters to focus on something other than the nearly 200,000 people who have died of covid-19 on his watch. We’re talking about Senate Majority Leader Mitch McConnell (R-Ky.), who could not care less what mere citizens might think. And we’re talking about the Senate Republicans, who reliably roll over and give Trump and McConnell whatever they want.
No one can stop them if they decide to go through with this putsch-like power play. But Democrats can make them pay by taking their power away. All of it…
Trump knows he is losing and wants to change the subject. Don’t let him.
Vote all these bastards out of office! And then watch the new Supreme Court rule that all of them won anyway. Some things are lost forever. There are few defeats more triumphant than victories. This doesn’t seem to be one of those.