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There is no such thing as a 6-3 Supreme Court.
It honestly sucks that we are in a political moment where a venerated figure is tossed aside and we immediately jump into a discussion about how she will be replaced. Mitch McConnell’s statement on her passing was both an obituary and him promising to fill her seat. There is something ugly about that (and when it happened to Justice Scalia). We tend to do the same thing after a mass shooting and it’s not great then either.
But much like gun policy, we do have to talk about what this means for both the election and the Supreme Court in the future. To touch on the polls briefly, Nate Silver has taken some heat for the uncertainty he has baked into his forecasting model. I think Ruth Bader Ginsburg’s death is showing that his hesitancy was prudent; anyone who tells you they know how this will affect the election is lying. It could, conceivably boost Democratic turnout, but it could also push some hesitant Trump-friendly voters more firmly into his corner. Early polls indicate that a majority of Americans say that the election should determine who appoints Ginsburg’s replacement:
The problem for Republicans is that they have completely boxed themselves in. We don’t have to go back to the multiple statements from Republican Senators like McConnell, Lindsay Graham, Tom Tillis, etc., who all said that when Antonin Scalia died in early 2016, the next President should get to choose his replacement. The American people needed to “weigh in,” went the argument.
Republicans can pretend all they want that they are not being total hypocrites, but voters have eyes and ears. It is obvious that McConnell is being hypocritical, which is his right as a politician. However, it’s the hypocrisy that has Democrats in Congress upset. They are so upset that public officials who are normally very coy on issues like expanding the Supreme Court are explicitly stating that it will happen if the Dems take control of the Senate in November. It is for that reason that, if Joe Biden cruises to victory and Democrats take control of the Senate, there will not be a 6-3 conservative majority on the Court.
The way to avoid this nightmare scenario (packing the Court is a nightmare scenario) is for McConnell to pass on replacing RBG - the same way he passed on replacing Garland - until after the election. If Trump wins, then the Democrats will be out of reasons to complain (they will still complain). If Biden wins, the Democrats will be out of reasons to expand the Court (they will still whine about it) and a 5-4 conservative majority is still in place and Biden has a whole four years to appoint another justice, should the opportunity arise.
I know what you’re thinking: If Democrats pack the Court, then Republicans can do it themselves when they take power. This is where it gets dicey. Picture this in 2022: After a motivated GOP base seems primed to turnout heavily for the midterm elections and give Republicans back the Senate, Democrats pass a bill fixing the number of Supreme Court justices at 15. The challenge to that bill will go before a court that is 9-6 Democratic appointees.
Does this sound like a healthy democracy to you? If you said yes to that question I will slap the crack pipe out of your hand the next time I see you. Of course, all of this speculation goes away if Trump wins or if McConnell does not replace RBG.
Let’s go to “should-reads” from last week. Jonathan Chait has a good look at what could happen to Trump if he loses and faces a criminal investigation. The way I always like to frame answers to the question, “Will Trump be prosecuted after he leaves office?” is: It is true that Trump is legally vulnerable right now. What is also true is:
Federal prosecutors are extremely risk-adverse. State prosecutors are a little more loosey-goosey, and will take a risk on a weird legal theory if they think they can convince a jury. Federal prosecutors generally only prosecute when they are positive they can win.
Indicting a former president is the opposite of being risk-adverse.
There was a horrific whistleblower complaint about forced hysterectomies on immigrant women in an ICE facility. I think this is a horrible story, that it is a growing scandal, but I also think that it should also be treated with calmness and even a little hesitancy. The complaint itself is somewhat vague and seems to involve a small number of cases that the whistleblower is aware of, and others that she is speculating about (see pages 18 and 19). If the whistleblower herself is being speculative, we should wait until a full investigation is completed.
I enjoyed this piece from The Bulwark on the “Anti-Flight 93” election argument, which is kind of moot now with Ginsburg’s death, but still worth reading.
Some of you might remember Michael Scheuer, who was previously a frequent guest on cable news. His most memorable moment for me was after a debate fight with Rudy Giuliani in the 2008 GOP primary, Ron Paul brought Scheuer out to give Giuliani a reading list on foreign policy. Long story short, Scheuer is completely insane now, as this Daily Beast profile lays out.
A must-read thread on QAnon and how it infiltrates social media:
If your jaw does not drop after reading this column…
Enjoy your week my beautiful babies. I’m sure there will be something else to talk about before next weekend.