By TODD STACY, Alabama Daily News
The death of longtime Supreme Court Justice Ruth Bader Ginsburg and the fight over how to fill her seat on the bench has turned up the heat on an election year already boiling over with emotion. We’ve known for years that whenever Ginsburg died or stepped down the ensuing battle over replacing her would be intense. There is an abiding admiration for her on the political left that goes beyond that of any other justice in the modern era and is probably up there with iconic presidents like Barack Obama and John F. Kennedy. Many view her seat as sacrosanct and a progressive primogeniture. The idea that a conservative justice appointed by a Republican president – especially THIS Republican president – could fill her seat was long the stuff of Democratic nightmares. And yet, it’s happening with less than five weeks to go until the election.
To be sure, things are about to get really ugly in Washington. If you thought the Brett Kavanaugh confirmation two years ago was a slugfest, that was kid gloves compared to what’s about to happen. What plays out along both ends of Pennsylvania Avenue over the next 41 days will have major implications well beyond November. Though the stakes have been raised to impossible heights, I humbly offer my political analysis, an opinion on the situation and some personal advice.
Republicans are likely to be successful in confirming President Donald Trump’s nominee to the court. Plenty can go wrong for them, but Majority Leader Mitch McConnell is a master at procedure and confirming lifetime federal judges is his passion. One big factor is timing. Do you schedule the Senate floor vote before or after the election? Trump has said he wants it before, surely betting that it could benefit his reelection chances to score a big win and bring home some wandering swing state conservatives. He’s probably right about that, though I would also argue that losing a confirmation vote could demoralize conservatives and galvanize liberals. But Trump’s reelection is not the prevailing goal for McConnell. It’s to win the vote. Right now, Republicans hold 53 seats to the Democrats’ 47, meaning they have three votes to spare before Vice President Mike Pence is called in to break a tie. Embattled Maine Sen. Susan Collins looks like she’s already a no. The other likely no at the moment is Alaska Sen. Lisa Murkowski, who voted against Kavanaugh’s confirmation. Utah Sen. Mitt Romney has at times been a thorn in Trump’s paw, but he has signalled that he is on board with confirming a conservative justice. That should mean Republicans have the votes to confirm, but you never know who could drop off as the pressure mounts. What kind of process would make senators comfortable enough to confirm? For those who are on the ballot this year, would delaying the vote until after the election secure their votes? These are the questions McConnell’s team is asking in the caucus right now, and the schedule and process will be dictated by whatever gives them the best chance at winning. That said, gaining another Supreme Court seat could spell longer term doom for the Republican Party, as some Democrats are threatening to expand the court and add two Democratic-leaning states to the Union if the election goes well for them, and I don’t think those are idle threats.
Speaking of the election, Democrats are in a strong position to win both the presidency and the Senate in November. I’ll do a separate column on electoral math soon, but suffice to say that if the election were held today, I think they’d control both. However, the way they handle this confirmation process could be a big factor down the homestretch. When Senate Republicans grew their majority in 2018 and defeated four incumbent Democrats, leaders credited it in part to what they called the “Kavanaugh effect,” or voter backlash over the treatment and coverage of the Supreme Court justice during his confirmation. When Trump names a nominee, Democrats would be wise to avoid unseemly personal attacks. If, for example, senators go after Judge Amy Comey Barrett’s Catholic faith in trying to pin her down on Roe v. Wade, that could backfire big time with religious voters in battleground states like Pennsylvania, Michigan and Wisconsin. There will no doubt be spirited protests and probably some mayhem, which would surprise no one. Democrats will do everything in their power to defeat the nomination, but they’d be wise to aim their criticism at Trump, the GOP and the process if they want to avoid a double whammy on election day.
You can’t open Twitter or Facebook today without seeing the dreaded “H” word: hypocrisy. Democrats charge McConnell and Republicans with being hypocrites for pushing ahead with confirmation after blocking President Barack Obama’s nomination of Merrick Garland in 2016 on the basis that it was an election year and voters should have their say on the matter. Republicans counter that former Vice President Joe Biden and Senate Democrats had the same position back then that the election year nomination should be considered. You know what? They’re both right. You know what else? It doesn’t matter as to the outcome. Hypocrisy is part of politics. Changing positions and breaking promises are what politicians do, and though I’m not saying that’s a good thing, it’s not always nefarious. George Bush said no new taxes. Barack Obama said we could keep the health care we liked. Conditions changed, and so did their commitments. It’s ironic and, given the moral certainty many are espousing right now, a little amusing that Republicans and Democrats have so easily switched positions from the Garland nomination. It’s also not surprising.
Of situations like these, Ralph Waldo Emerson wrote, “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines… Speak what you think now in hard words, and tomorrow speak what tomorrow thinks in hard words again, though it contradict everything you said today.”
You should read the whole passage from his essay, Self Reliance, but the point is that those who only concern themselves with avoiding contradiction risk being a prisoner to their past convictions, resulting in ineffectiveness toward the ends they want. A truly conservative, originalist Supreme Court has been a Republican fever dream for generations and, now that the opportunity presents itself, they won’t let inconsistency stand in their way. And Democrats, if the tables were turned, wouldn’t either.
Chances are something you really don’t like is going to happen in the next five weeks. If you’re a conservative, it might be Trump getting defeated or the Senate falling into Democratic hands. If you’re a liberal, it might be Trump winning or the cherished Ginsburg seat being filled by a conservative. My advice is to accept this likelihood now and don’t spend the next several weeks agonizing over your preferred political outcomes. I’m not saying stop caring about your personal convictions. As someone who worked in professional politics for many years, I understand and value passion for principles. With the future of the Republic at stake, who leads our country is as important as ever, and our votes and voices shouldn’t be taken lightly. But don’t let your politics dominate your life and, most importantly, don’t let politics destroy relationships. In such a heated political environment, it’s easy to let ideology dictate our personalities to the point where we develop crippling anxiety, cut ourselves off from others and keep us from enjoying life. It’s not worth it. Politics and politicians will let you down in the end, but family and friends are forever.
The passing of Justice Ginsburg has resurfaced many stories from her remarkable life, and I was heartened to be reminded about her close friendship with the late Justice Antonin Scalia. The two could not have been further apart on the ideological scale, and yet they remained the closest of friends for three decades. Both were nothing short of heroes to their respective side of the political spectrum, and yet they did not let that status or the enormity of their decisions interfere with a bond that brought them joy and tenderness. If two titans of jurisprudence could prevent their deeply entrenched views from interfering with their interpersonal relationships, so can the rest of us.
Find your voice and use it. But don’t lose your mind.
Todd C. Stacy is the publisher of Alabama Daily News. Email him at [email protected].