We are in suddenly in the midst of an October Surprise. Candidates and parties often try to spring something in October to effect the voting in the November elections. This time the surprise has been supplied by Ruth Bader Ginsburg who has, by dying, upset the political apple cart in ways that are, for the moment, hard to predict.
Justice Ginsburg has become a kind of later day folk hero. People who know or care little about the Supreme Court can name one Court member, Ruth Bader Ginsburg. Her long legal efforts to bring equality for women and her latter day much publicized battles with cancer have made her a kind of universally recognized national hero.
Her passing comes less than a week after Donald Trump tried to juice up his faltering campaign by publishing a list of potential appointees to the Supreme Court. That list of worthies, conservatives all, was intended to remind the public that despite his hapless non-efforts to deal with the continuing pandemic, he has managed to appoint a very large number of conservatives to life-time positions in the federal courts. He could have added that some were even qualified.
He also clearly intended to lure Joe Biden into supplying his own list of incipient Supreme Court nominees who could then be attacked as hopelessly, radically, unacceptably, liberal. And, because his followers would think that oaks on a tree farm owned by Democrats would be radically liberal, those followers would be properly repulsed.
So, just as the list was published, Ruth Ginsburg died. Her last wish was reported to be a plaintive request that she not be replaced until a new president would take office. Donald Trump’s response was that he would nominate someone perhaps by next week. And, Mitch McConnell, the Republican Senate Majority Leader, said that if there was someone nominated, the Senate would vote on that nominee. More accurately, the Senate would return to Washington to do a vote because soon they will be off campaigning until the election in November.
It is clear that from now on a great deal of the campaigns of both parties will be devoted to obsessing about the vacancy on the Supreme Court that Ruth Ginsburg’s untimely passing has created. For Donald Trump it will serve to take voters’ minds off the 200,000 people who have died while he continues to dither. For his campaign it could be a lifesaver.
There is a downside for the Republicans. For the opposing Democrats it will open a wound that has never healed. Remember that Barack Obama, nine months before the end of his term, nominated the well qualified moderate, Merrick Garland, to the Supreme Court. At that point Majority Leader Mitch McConnell sat on the nomination and refused to allow the Judiciary Committee to even take it up.
Week after week wiser heads and particularly wiser Democratic heads, urged and pleaded. Mitch McConnell was unmoved. He argued that because the Obama administration was in its last year, the Senate would wait until “the people had decided” in the 2016 election. The fact that it was shamefully undemocratic affected McConnell not at all. McConnell had conquered shame.
So now with five weeks till the election, with Congress leaving, and with the Supreme Court in recess for the rest of the summer, and with Donald Trump very possibly about to be rejected by voters, now a fifth conservative is to be nominated and pushed through. Ralph Waldo Emerson famously said that “consistency is the hobgoblin of little minds”. Democrats are going to be responding to not just McConnell’s conquering of shame but the conquering of consistency too.
So what will happen? It is possible in this case that Donald Trump’s and Mitch McConnell’s flouting of consistency just will not work. If the Trump base is aroused by the joy one more conservative on the Court, the media and the public will be even more aroused. There is a simple sense of fairness that may finally exercise the voting public.
That public rebuttal will not affect House races so much because nominations to the Courts are particularly the bailiwick of the Senate. But for Republican candidates for the Senate this death will be a true political problem. How do they explain to an aroused public their own inconsistency in supporting their Majority Leader (who is almost always a winning candidate for the Senate’s most hated). The hasty replacement will be much easier to attack than to defend.
In an election year, the Democrats will be united in opposition as never before. The Republicans in the Senate, most of whom will not be up for reelection, will be well aware that Donald Trump has very little chance of being returned to office. Their terror stricken enforced fealty to the White House will be greatly reduced. Those who must campaign will know that their voters will be severely divided by ill timed nomination hearings. When voter opinions are too divided, voters stay home.
In an odd way Ruth Bader Ginsburg wins again. She led a long amazingly productive life. Her death has unleashed a political whirlwind. If the Republican Senate majority honors her last wish and waits to act, the people of this country will clearly benefit. If they do not, their unprincipled action will become the stuff of history. In the long run a political party in a democracy that defies right principles will lose. In the end they will be forgotten. Ruth Bader Ginsburg’s great work, despite her pain and her death, will live on.