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Ginsburg — John Mathew Smith (CC BY-SA); McConnell — Kentucky National Guard Public Affairs Office (CC BY)

How Ginsburg’s Seat is Saved

There’s no doubt that the death of Justice Ginsburg has radically changed the dynamics of the 2020 election. But there is no reason to believe that Justice Ginsburg’s seat is lost to a Trump appointee. Mitch McConnell is playing a difficult game. At each stage between now and January 20, his actions are significantly constrained.

It would make no sense for McConnell to bring a nominee to the floor before the election. That’s no gain for the Republicans, but only significant costs.

It’s no gain, because by filling the seat, McConnell eliminates the turnout effect that this event is certainly going to have for Republicans. There are many who were on the fence about Trump who will now turn out for the Supreme Court seat alone. If that seat is filled, they stay home.

And it’s a significant cost because key Republicans would face a backlash at the polls for reversing themselves on election-year appointments. Susan Collins most obviously. Maybe even McConnell himself (though who can begin to understand Kentucky voters?).

Bottom line: I don’t expect we’ll see any nominee on the Senate floor before November 3.

If Trump wins, game over, obviously.

If he doesn’t win, then everything depends on whether the Senate has been flipped as well.

If the Democrats have won all three contests — the House, Senate, and White House—then the path to stopping McConnell in the Senate is clear:

The Democrats declare that they will add four seats to the Court if there’s a lame-duck appointment, and they promise they won’t if there isn’t.

That deal is fair and right. What McConnell did with Garland was wrong. The hypocrisy in now reversing the “principle” (as he then put it) that blocked Garland adds insult to injury. Bad behavior must be punished — especially in politics. If they steal two, they should lose four.

But if McConnell does not bring a lame-duck nominee, then the Democrats should stand down. Garland’s seat was taken, but by foregoing an appointment during his term, Trump’s seat will be given in return. Ginsburg’s seat will have been saved, to be filled by Joe Biden. Some order in this insane universe will have been restored.

If the Democrats win the White House but don’t take the Senate, then this is the hardest case. McConnell will have the power to bring a nominee to the floor, at least through January 20. Stopping him will require real persuasion, including the persuasion of rightful protest against wrongful hypocrisy.

It’s not clear that protest could work in any case. The challenge in this case is that it will be happening in the midst of an already insane election. And indeed, the focus on that election could be exactly the cover that McConnell needs to slip a confirmation through. The effort to carry the presidential election to a just result will be difficult enough. This may be just one protest too far. (And don’t discount this appointment becoming one more chip in a grand bargain to resolve the election. Echos of the deal that gave Hayes the presidency in 1877, in exchange for an end to Reconstruction, are audible already).

Bottom line: The only certain path to saving Ginsburg’s seat is a Biden victory and a McConnell defeat (either for himself or for his party in the Senate). The first is now more difficult. The second should be easier.

If there were ever a time for people to rally to persuade Kentucky to keep McConnell in Kentucky, it is now. Add hypocrisy (reversing his “principle” on Supreme Court nominees) to perjury (swearing an oath to be “nonpartial” in the impeachment trial while openly declaring he would not be “impartial”) and to his god-awful political “values” (a big believer in big money in elections; the block to pandemic stimulus to assure immunity to companies that get their employees sick through negligence; and so on and so on and so on), there is every reason to triple down in support of his opponent, Amy McGrath. (And hey, Democratic SuperPACs — this is your target! McConnell loves SuperPACs. He believes them the perfect expression of democracy. So “speak” — loudly and clearly — across the hills of Kentucky. What better justice than that Frankenstein turning on the man who helped birth him — and defeating him.)

And if not McConnell, then triple down on the second-best strategy here —demoting McConnell to minority leader in the Senate. There are 6 toss-up races in the Senate. If the Democrats win 4, McConnell loses.

I’ve been a non-fan of the Dark Lord for a long time (I even had the honor of presenting him with a MotherF*cker’s Lifetime Achievement Award). But his defeat — by either keeping him in Kentucky or making him a minority leader—will be as consequential as the defeat of Donald Trump—and as necessary to restoring this Republic as anything this awful year will bring.

We need to keep the focus on the election—for now. Don’t help them distract America from the complete failure that is this President and his “party.” There will be time enough for organizing to defend Ginsburg’s seat — when indeed we understand what kind of organizing that will need. Cycles spent on that now are cycles that could be used to do what must be done: Defeating the Republicans in the Senate and defeating Donald Trump.

Written by

law professor, activist.

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