I get it. Republicans are shameless hypocrites. A dozen or more GOP senators have done an about face, turning their back on a Merrick Garland rule they made up in the first place. The excuses were all over the map, but they needn’t have been. Over the course of the past half-century, the Republican Party has been animated by two objectives above all else: cutting taxes and appointing conservative judges. While Congressional Republicans hung their hat on “supply side” theories early on to justify their tax cuts, it did not take long before they decided that piling up debt was a price they were willing to pay — or have someone else pay — for piling up campaign cash and winning elections. Are Republican senators willing to vote to put Donald Trump’s nominee on the Supreme Court days before a presidential election, violating whatever pledges they might have made in the past that they wouldn’t? In a New York minute, as it turned out.
Despite the rage among Democrats about the hypocrisy and unfairness of it all, this will be an easy vote for GOP senators. After four years of prostrating themselves before Donald Trump, notions like honor and integrity and putting country before party have disappeared from their muscle memory.
Conservatives have been motivated by the Supreme Court for the past half-century with a singular focus that has simply not been true for liberals or progressives. When elections roll around, Democratic voters care about the Court, but it is just one of many issues that motivates their vote. For a large subset of Republican voters, on the other hand, the Supreme Court is all they care about.
For all the success Republicans have had over the years in packing the courts with young, Federalist Society jurists, they have never achieved the solid majority on the Supreme Court that now appears at hand. Republican presidents have sat in the White House for 32 of the past 52 years, over which time they have placed 15 justices on the Supreme Court, compared to four for Democrat presidents. Yet, over those years, social conservatives have had to watch in horror as one Republican nominee after another — from Harry Blackmun to John Paul Stevens to David Souter — migrated to the left during their years on the Court, and even John Roberts and Neil Gorsuch joined liberal justices in ruling against conservatives on critical issues.
For social conservatives, filling Ginsburg’s seat is the stuff of their dreams, and Senate Republicans understand that voting on this nomination — and in doing so shifting the balance of the Court from an uneasy 5–4 conservative majority to a more definitive 6–3 majority — is an iron-clad obligation that they owe to their supporters. That the vote will happen is a fait accompli; the smartest thing that Democrats can do over the coming weeks is to treat the nominee with dignity and respect, and avoid letting the confirmation process devolve into the culture war that Donald Trump dearly hopes will tip the November election in his favor.
Anger on the left over a conservative replacing Ruth Bader Ginsburg on the Court has an eerily familiar ring to it. It is the same outrage and indignation that Democrats felt when Clarence Thomas was nominated to replace Thurgood Marshall. Like RBG, Marshall was an icon of his generation, who had made unique contributions to American jurisprudence and social progress. But all of that outrage will not change what is about to take place. Decade after decade, Democrats have found themselves being schooled in the realities of winning elections and wielding power by the likes of Lee Atwater, Grover Norquist, James Baker, Dick Cheney, and Mitch McConnell, who understand that the difference between the political parties is as much, or more, about the focus on gaining and wielding power as it is about policy disagreements. To this day, the dynamics of power seem to elude Democrats, even as it comes naturally to Republicans.
As the old adage goes, Republicans fall in line, Democrats fall in love. It reflects the historical willingness of Republican voters to rally around their general election candidate, regardless of how nasty the primary fight might have been, while Democratic groups continue their internecine fights long after the primaries are over, never letting go of the candidate of their dreams. The adage might well be stated differently: Republicans understand what is at stake when elections roll around; Democrats don’t. The history of presidential elections over the past half-century is replete with Democrats who lost close races as elements of the Democratic Party coalition sat on their hands, while Republicans stood four-square behind their candidate. In 1968, progressives who had swooned over Eugene McCarthy or Bobby Kennedy never warmed up to Hubert Humphrey, and many opted to stay home as Richard Nixon won a razor-thin victory. In 2000, Ralph Nader — the high priest of the politics of purity — won enough Democratic votes to hand the White House to George W. Bush.
After Donald Trump’s narrow victory four years ago, you might have thought that Democrats would have learned that elections are won or lost at the margins. But even as the battle rages over the RBG seat on the Court, there are still those within the party demanding to know what Joe Biden is going to do to earn their vote.
Republican senators have reacted bitterly to suggestions by Democrats that “ramming through” a new justice will be met with harsh retaliation next year should Democrats prevail in November. No one has argued that Mitch McConnell does not have the right under the Constitution to push forward with a vote on whomever Donald Trump chooses to nominate. By the same token, there is nothing that Democrats have suggested that they might do — expanding the number of justices on the Supreme Court, granting statehood to the District of Columbia and Puerto Rico — that Democrats will not similarly have the right to do should they win in November as many in the GOP now foresee. Should he find himself Minority Leader in January 2021, Mitch McConnell will no doubt inveigh against ending the filibuster — a necessary first step to the rest of the Democratic agenda. But warnings about the unintended consequences of steps Democrats might take will likely fall on deaf ears after four years of watching Donald Trump run roughshod over democratic norms and institutions and Congressional oversight, to say nothing of Mitch McConnell’s own manipulations of the rules.
McConnell, an inveterate poll-reader, knew the moment he heard that Ruth Bader Ginsburg had died that he had a choice to make. He could have chosen to delay the Supreme Court vote, soothe the waters with Senate Democrats, and bet on Trump being able to run the table in the swing states a second time. But instead — perhaps sensing that his days as Majority Leader are numbered — he chose to take the sure thing. As the conservative pundit Jonathan Last commented. “You might think of Senate Republicans as a bunch of bank robbers, running around in the vault, stuffing every last wad of cash they can grab down the front of their pants because they hear the sirens and they know that the cozzers will be on the scene any minute.”
A Biden victory in November once augured a return to normalcy. But notions of normalcy — like Joe Biden’s wistful stories of mutual respect and bipartisan cooperation during his years in the Senate — seem increasingly like parables of a past that is lost to us. The irony is that even as Republicans are rushing to install a new justice on the Supreme Court, they are laying the groundwork for the whirlwind to come. While they imagine that their legacy will be a super-majority on the Supreme Court that will put a conservative stamp on the nation for decades to come, their legacy may instead be an historic contribution to the further fraying of the fragile bonds of trust that are the glue of the Republic. The filibuster could well be history by the end of January, and their cherished 6–3 conservative majority on the Supreme Court gone by July. Rather than a return to normalcy, we will instead see retribution and rage — hallmarks of the Trump presidency that we thought we might be able to put behind us — rise to new heights and continue to transform the political landscape.