By Andrew Millman
Fuck. That’s the only word appropriate right now, in all honesty. Ruth Bader Ginsburg passed away last week at the age of 87. A champion of women’s rights and justice more broadly, Ginsburg founded the Women’s Rights Project at the ACLU and went on to become the longest-tenured woman ever to serve on the Supreme Court. She’s literally the reason gender discrimination laws are given intermediate scrutiny in our legal system (an important distinction that made it more difficult for the government to discriminate on the basis of gender). May her memory be a blessing to us all.
However, unfortunately in this hellish epoch we’re living in, the mourning of this icon of American history had already been overshadowed by Republicans’ callous attempts to rush through a replacement onto the Supreme Court in the midst of an election. The first presidential debate is next week, for god’s sake. With President Trump down on average 7 points in the polls (and somehow even worse in swing states) and Democrats on track to retake the Senate majority this year (according to FiveThirtyEight), this could be the last chance for the Republican Party to ensure that they hold onto power. In replacing Justice Ginsburg with a hard-right conservative, conservatives would ensure that, through the judiciary, they would be able to block any Democratic legislation at will; this happened once before in the Lochner era. Remember, Republicans have won the national popular vote for president exactly once in the past decade. It’s no secret that the American right has relied on anti-majoritarian institutions (the Electoral College, the Senate, and the Judiciary) and tactics (gerrymandering, voter suppression) to hold onto power in the last decade.
To make matters worse, if President Trump were to lose the election this November, but not accept the results, the matter would go to a Supreme Court currently composed of five Republican-appointed justices and three Democratic-appointed justices. That’s not even considering if Republicans ram through a Trump appointee. Furthermore, Obamacare’s protections for preexisting conditions are on the Supreme Court’s docket this term and are likely going to be declared unconstitutional, or the court will deadlock 4-4, in which case the lower court ruling (which ruled against the protections) would stand. That’s just one facet of the nightmare scenario. A 6-3 conservative majority on the high court could end reproductive rights, reverse same-sex marriage legalization, and declare any attempt at economic regulation, gun control, or environmental protection unconstitutional, among a myriad of other dark-age possibilities I cannot possibly fathom at the moment.
So what is to be done? American liberal democracy’s only hope, as it stands now, is convincing a handful of Republican Senators to stand on principle and not their political interests (yes, I know this sounds bad). The Senate is currently 53 Republicans and 47 Democrats, with Vice President Mike Pence casting a deciding vote in case of a tie, meaning Democrats need four more votes to block this power-grab of a potential appointment. The only good news is that should Mark Kelly defeat Martha McSally in the Arizona Senate election this year, he would take office in late November because it’s technically a special election. Polls have consistently had Kelly up in that race by nearly ten points. That gets the Democrats one vote closer, three votes to go.
Alaska Senator Lisa Murkowski, Iowa Senator Chuck Grassley, and Utah Senator Mitt Romney have both previously stated that they would not vote for a Supreme Court nominee during an election year (Murkowski reiterated that commitment after RBG’s passing). South Carolina Senator Lindsey Graham had also said that, but he already flip-flopped on that the day of Ginsburg’s death. If Grassley and Romney stay true to their word and the vote doesn’t go to the floor before Kelly takes his Senate seat, Democrats have the votes. That’s the optimistic case.
But, say Trump and Senate Republicans lose in November, and they’re looking at a minimum of two years of complete Democratic rule, I’m not sure those Republican Senators (as with any politicians really) can be counted on to stand on principle and not political motivations in that scenario. If that happens, American liberal democracy is in a really perilous place. Apologies for not ending on a more positive note, but I find this all so incredibly bleak for our collective futures.