[Comment: These notes frequently take shape over several days. Although I dislike regurgitating old ground, I have taken the liberty of leaving in concepts drafted before they were confirmed by subsequent events or expressed by pundits, such as the likelihood that President Trump would nominate a woman for Justice Ginsburg’s seat and the political conundrum that the Justice’s passing creates for GOP Senators such as Sen. Collins.]
I never engaged in Constitutional Law during my decades of law practice, and never developed any detailed understanding of Justice Ruth Bader Ginsburg’s jurisprudence beyond that she was a liberal icon. What I found notable about her was the extent to which she “broke through” to the public as a woman’s rights icon and a person of grit and stamina respected across the political spectrum. Even President Trump, who never misses an opportunity to be churlish in his description of anyone who doesn’t agree with him, was gracious in his initial comments after learning of her passing. I’d wager that if last week, a cross section of Americans was asked to name members of the Supreme Court, the highest percentage would have mentioned Ruth Bader Ginsburg, John Roberts, and Brett Kavanaugh [I suspect that the latter would rather not be as readily remembered as he is ;)].
At this point, the political maneuvering is well underway. “All politics is local” is a well-known maxim most closely associated with the late former Democratic Speaker of the U.S. House of Representatives, Thomas “Tip” O’Neill, Jr.; I would suggest that the maxim is a subtler way of saying, “All politics is personal survival.” How Justice Ginsburg’s passing will affect individual politicians will seemingly vary greatly. We’ll get to the President in a minute.
First, the easiest: Republican Senate Majority Leader Mitch McConnell. The play for Sen. McConnell – or if you prefer, Moscow Mitch, The Man of Many Chins, or The Evil Weasel — is obvious: push the nomination through. Mr. McConnell views the conservative stacking of the federal judicial system as his legacy. He has no qualms about fairness or decorum. He undoubtedly realizes that this could be his last chance to put another conservative on the Supreme Court. Even so, perhaps the most important point for him: despite the egregious hypocrisy involved in proceeding with efforts to confirm any Trump nominee given his thwarting of former President Barack Obama’s nomination of U.S. Court of Appeals Judge Merrick Garland four years ago, I’ll venture that the majority of Kentuckians will approve of his moving forward. Such an approach may well seal his victory in his 2020 U.S. KY Senate race. At a guess perhaps born of northern ignorance, an aggressive Republican move also seems to help Republican Sens. Lindsey Graham (SC), Thom Tillis (NC), and Sonny Perdue (GA) in their tighter-than-expected races.
At the other end of the spectrum is U.S. ME Sen. Susan Collins and perhaps other Republican Senators in close races in more moderate states, such as Republican Sens. Martha McSally (AZ), Cory Gardner (CO), and Joni Ernst (IA). None will win without rabid support among committed conservatives but perhaps can’t win without some support from moderates who may be offended by a blatantly political Republican move to cram a nominee into Ms. Ginsburg’s seat. Calls by Sen. Collins and her friend, U.S. AK Sen. Lisa Murkowski, to delay any Senate confirmation vote until after Election Day demonstrate that they understand that the upcoming process places Sen. Collins in acute political peril. The decision by Messrs. Trump and McConnell to proceed — although it arguably reduces their odds of maintaining a Republican Senate majority in January — simply confirms that at bottom, all politics is … personal survival.
As to the President: He has already indicated that he intends to send a nominee to the Republican-controlled Senate in short order. The nominee will undoubtedly be an avid cultural conservative and pro-life advocate. I’ll be shocked if it’s not a woman; the Trump Administration will attempt to defuse by at least a bit the feminist ire that would result from women “losing” a seat on the Court. No matter whom the President chooses, going forward with the nomination is the obvious play for him. He would absolutely grievously offend and lose vital support among evangelicals and cultural conservatives if he doesn’t proceed. The beauty of this from his perspective – although he has already proven too ham-handed to take advantage of it – is that he could have gained political advantage for himself – all he cares about – and while seemingly sticking to the high ground: a Supreme Court Justice has died; he’s President; he’s going to put forth a nominee to fill the seat, as the Constitution requires; he had no part in the Senate’s lack of action on the Garland nomination; what the Senate does with his nomination is up to the Senate. Since he isn’t subtle enough to stick to that tack, Mr. Trump could well lose some swing state suburban moderates who may be concerned that an unfairly partisan rushed confirmation process will endanger pro-choice and health care protections, but this is obviously an electoral risk he intends – and from the standpoint of his cold political need for staunch religious conservative support, has — to take.
All that said, I would submit that the most important political advantage the nomination provides Mr. Trump: every day the discussion is about the Supreme Court and not about the Coronavirus is a good political day for him.
In an effort to keep these posts to at least a somewhat manageable length, what remains of this note will appear in Part II.