Republicans Fall In Line, McConnell Gears Up For Another Big Win
September 22, 2020
LIFE MOVES PRETTY FAST|
It hasn’t been a week since the passing of JUSTICE RUTH BADER GINSBURG and already the news is focused on who PRESIDENT TRUMP will pick to take her place on the Supreme Court. Time is of the essence for Senate Republicans as they try and get a nominee confirmed, ignoring the chorus of voices reminding them that just four short years ago they refused to hold so much as a hearing for JUDGE MERRICK GARLAND because it was a presidential election year.
IF YOU READ ONE THING TODAY|
What does it say about our democracy that when one Supreme Court justice dies, political chaos of the highest order ensues over crowning someone with a lifetime appointment? Charles Lane notes in The Washington Post, “Gone are the days when anyone considers the federal judiciary the ‘least dangerous’ branch, in Alexander Hamilton’s famous phrase.” The average life expectancy has increased from roughly 40 years in the late 18th century, when our Founders were dreaming up the role of SCOTUS, to almost 79 years today. It’s estimated that over the next century, there will be only 25 new Supreme Court justices — compared with the 47 we’ve had in the previous 100 years. Lane suggests life tenure at SCOTUS needs to meet its end, “Whatever its precise features, the crucial advantage of term limits or mandatory retirement is to reduce the discretion members of the court have over how long they serve, and the accompanying incentive to ‘time’ retirement for ideological or partisan advantage, which is unseemly — and, often, futile.”
ED BOARD OVERTURE|
The Washington Post’s Editorial Board has endorsed term limits for SCOTUS too, writing, “A smartly designed term-limit plan would remove the role of fortune in determining how many justices a president gets to nominate. Justices’ terms could be designed to end in a staggered manner so that an equal number of openings come up in every presidential term. Over time, more justices would have impact, preventing the idiosyncratic preferences of one or two individuals from determining U.S. jurisprudence for decades.”
WHEN I SAY SOFTLY, SLOWLY|
Kevin Liptak and Kaitlin Collins with CNN review the moment in which DONALD TRUMP learned of RBG’s passing. He was exiting the stage of a campaign rally on Friday night as Elton John’s “Tiny Dancer” played in the background. It was then that he learned of the news. “The Friday night decision to proceed with his rally amounted to the first in what will be a string of rapid fire choices by Trump and his team meant to harness whatever political advantage comes from a high court vacancy in the contentious final months of a presidential campaign. Handed a potential lifeline for his flagging political career, Trump faces what some officials view as the most consequential decisions of his presidency, ones that carry with them real-world ramifications for Americans’ health care, reproductive rights and the election results themselves.” Liptak and Collins report that Trump hopes by focusing on SCOTUS, he can obscure his “unsteady response” to the pandemic that has “caused him serious political damage.”
TRUMP AND HIS LIST OF LADIES|
PRESIDENT TRUMP has already said he plans to name a woman to the Supreme Court to fill JUSTICE GINSBURG’S seat, and so The Wall Street Journal reviewed the profiles of five women on the president’s shortlist including, JUDGE AMY CONEY BARRETT (48 years old and widely considered to the be the frontrunner), JUDGE BARBARA LAGOA (52 years old), JUDGE JOAN LARSEN (51 years old), JUDGE ALLISON RUSHING (38 years old), and KATE COMERFORD TODD.
UNDER HIS EYE|
Elizabeth Dias and Adam Liptak with The New York Times zoom in on JUDGE AMY CONEY BARRETT who is considered to be the leading contender for replacing JUSTICE RUTH BADER GINSBURG. They note that if she does get confirmed, Barrett would be the sitting justice with the least courtroom experience. So why do conservatives love her so much? Because she is pro-life and a kind of celebrity among the religiously conservative. Dias and Liptak note, “The nomination of a judge whom Mr. Trump was quoted last year as “saving” to be Justice Ginsburg’s replacement would almost surely plunge the nation into a bitter and divisive debate over the future of abortion rights, made even more pointed because Judge Barrett would replace a justice who was an unequivocal supporter of those rights. That is a debate Mr. Trump has not shied away from as president, as his judicial appointments and efforts to court conservatives have repeatedly shown.”
REVIEWING RESUMES AND ROOTS|
But JUDGE LAGOA could hold some interest to PRESIDENT TRUMP as well. Patricia Mazzei and Adam Liptak with The New York Times report her roots in the Cuban-American community and her career as a federal prosecutor and appellate judge in Florida could make her an attractive candidate for a president trying to consider the electoral map. “Judge Lagoa, 52, does not have some of the traditional credentials for a justice. But as the U.S.-born daughter of Cuban exiles who has risen to the highest echelons of her profession, she embodies Miami’s longstanding version of the American dream.”
POLL TAXES IN 2020|
There’s just one itty bitty thing to know about JUDGE LAGOA: she’s not a fan of voting rights. Mark Joseph Stern with Slate notes that she provided the decisive vote when the 11th Circuit upheld Florida’s poll tax even though, Stern says, she should have recused herself from the case because she participated in a closely related proceeding, throwing her impartiality into serious doubt. “There is a word for what Lagoa did throughout the Amendment 4 litigation: auditioning. Lagoa proved to Trump that she would even defy judicial ethics to come through for him on a case that could swing the election. Nobody should’ve been surprised when she appeared on the president’s latest Supreme Court shortlist.”
ANOTHER WIN FOR MITCH|
“It appears that Senate Majority Leader MITCH MCCONNELL will win again. As of Monday, he almost certainly has the votes that he needs to go back on the precedent he set in 2016 about refusing to seat Supreme Court justices in an election year and build upon the Supreme Court he’s been intent on creating ever since he stole Merrick Garland’s seat four years ago.” Jeremy Stahl with Slate notes that it only took McConnell three days to get Senate Republicans to fall in line behind their plan to rush through a confirmation and contradict the position they held in 2016 following the death of JUSTICE ANTONIN SCALIA.
ASHES, ASHES, THEY ALL FALL DOWN|
For those hoping SENATOR MITT ROMNEY — who voted to convict PRESIDENT TRUMP in the impeachment trial and remove him from office — would refuse to help Trump pick a justice for SCOTUS, you’d be sorely disappointed. Today, Romney said in a statement that he would support filling RBG’s seat, even in an election year.
POD DU JOUR|
On the latest installment of the FiveThirtyEight Politics podcast, the crew discusses the political calculations for both Republicans and Democrats over how to proceed in replacing Supreme Court JUSTICE RUTH BADER GINSBURG.
THE MOST IMPROBABLE ICON|
Because we all moved on from mourning RUTH BADER GINSBURG far too fast — faster than her life’s work could possibly deserve — let’s turn to the words of Dahlia Lithwick with Slate: “In a world that won’t cast 50-year-old women in films, Justice Ginsburg managed to be an aspiration for the soccer moms and also the middle schoolers and, yes, the toddlers who dressed in tiny glasses and oversized collars for Halloween. She was the most improbable icon sprung from the unlikeliest branch of government—a dork’s dork, seated for decades on a court that permits neither cameras nor tape recorders…America has lost a warrior, and it’s OK to be crushed. I am flattened. And I will mourn, because she deserves to be mourned. But we are also facing an almighty battle that will rage in the coming weeks, with attempts to fill her seat in an unseemly and grotesque manner. It will be hard and painful, but if you find yourself feeling hopeless and powerless, then you are emphatically doing it wrong. Because if anyone had a right to say ‘nah,’ it was the woman who couldn’t get a job or a clerkship after graduating at the top of her class. But she pushed on, and then she pushed forward. She stepped into the fight of the phenomenal women who paved the path before, and now, well, it’s time to step into her fight and get it finished.”
SCOTUS VIEWSThe New York Times
“Social conservatives felt betrayed when, in June, Neil Gorsuch, Donald Trump’s first Supreme Court appointee, wrote in a majority opinion that it’s illegal under the 1964 Civil Rights Act to fire someone for being gay or transgender. They were doubly dejected when Chief Justice John Roberts cast the deciding vote in a decision striking down a Louisiana law that would have all but regulated legal abortion out of existence in the state. As Politico reported, they now want a guarantee that a new Trump judge will carry out their agenda. At this bleak moment for reproductive rights, this counts as good news. It might at last end the absurd charade that allows conservative Supreme Court nominees to obscure their opposition to legal abortion.”The Washington Post
“Democrats are understandably furious and fearful over the likelihood that President Trump and the Republican-controlled Senate will replace the late Justice Ruth Bader Ginsburg with a conservative. That does not justify packing the Supreme Court with progressives in retaliation. The judicial branch’s primary virtue, and the reason it is a separate branch of government, is that it’s nonpolitical. The separation of powers preserves liberty because it prevents those who make the laws from applying them. Independence of the judiciary is perhaps the single most crucial innovation of modern liberal democracies.”The New York Times
“The religious right has made no secret of its expectation that President Trump will choose a socially conservative successor to the seat held by Ruth Bader Ginsburg. And the president will likely deliver, further confirming the power of the religious right. The conservative legal movement, which at one time was libertarian in spirit, has been hijacked by the religious right. This religious version has left a deep mark on the Supreme Court under the leadership of Chief Justice John Roberts.”Slate
“There is another, better, way to rein in partisan judges: by stripping the Supreme Court, and also the lower federal courts, of jurisdiction where Congress does not want partisan judges second-guessing particular decisions—especially where, as is so often true, the Constitution does not speak directly to an issue and courts are making political choices rather than legal judgments. That strategy, while perhaps a bit more difficult to reduce to a sound bite or a campaign slogan, gets directly at the problem of partisan judicial activism. It is also a more focused and less overtly politicized approach compared with court packing.”The Atlantic
“If only Ginsburg had been forced to retire years ago, the theory goes, the country would not be facing down the uncertainty of a confirmation fight in the midst of an already tumultuous election season. The hope, which first gained traction in modern times after Robert Bork’s failed nomination in 1987, is that by more regularly replacing longtime justices with newer ones, adding predictability to when those switches occur, the judicial-nomination process would become less divisive and disruptive. This is largely right—term limits could help restore confidence in the confirmation process and eliminate the morbid health watches we now have as justices age—but there are other problems they wouldn’t fix.”
OTHER NEWSUSA Today
“The death of Associate Justice Ruth Bader Ginsburg could have a major impact on the latest challenge to the Affordable Care Act, which arrives at the Supreme Court one week after Election Day. The latest effort by Texas and 17 allied states to strike down the 10-year-old law has been considered a long shot at the court because of Chief Justice John Roberts’ alignment with the four liberal justices in prior challenges. Without Ginsburg, however, there could be four votes on either side, which would leave a federal appeals court ruling against the law intact. If President Donald Trump and Senate Republicans nominate and confirm a conservative successor to hear the case, that could tip the balance.”The New York Times
“Supreme Court justices make $265,600 a year. The chief justice gets $277,700. Their law clerks do a lot better. After a year of service at the court, they are routinely offered signing bonuses of $400,000 from law firms, on top of healthy salaries of more than $200,000. What are the firms paying for? In a profession obsessed with shiny credentials, a Supreme Court clerkship glitters. Hiring former clerks burnishes the firms’ prestige, making them more attractive to clients.”