Old Man Fibber and the Supreme Court

Back in 2016, when Justice Scalia died in February, Moscow Mitch should have made this argument:

As a matter of raw political power, we rightwing Republicans are just not going to let Obama and his crowd put a moderate jurist in the seat occupied by Saint Antonin of blessed memory. Just won’t do it. If that’s “breaking a norm,” then, guess what, we’re breaking a norm. But we are following the letter of the Constitution and you can’t stop us.

But is that the argument that Moscow Mitch actually made in 2016? No, ladies and germs, it is not. The argument he made, in words or substance was

We’re not breaking norms, we’re just establishing a new norm, and it is this: no Supreme Court nominees should or will be considered by the Senate during any year in which a presidential election is held.

And now, surprise, surprise, he’s breaking his own new norm. And what will be the effect of Moscow Mitch’s breaking of his own bogus norm?

First of all, will it cause a single solitary one of us to switch from Trump to Biden or from Biden to Trump? I doubt it very seriously.

Second, will it really, really piss off the liberals—and maybe motivate a few more of them to show up at the polls? That’s what I would bet.

Third, what will be the long term effects of Moscow Mitch’s gambit? I think Jennifer Rubin has a lot of insightful things to say:

The notion that Republicans will “win” and capture the Supreme Court for a generation by jamming through a highly partisan justice during an election on a strictly partisan vote is preposterous. It will simply be the starting gun in a race to dismantle the Supreme Court as we know it. …

The Supreme Court’s jurisdiction in all other cases — the ones we commonly associate with the court — are controlled at the complete discretion of Congress. (Per the Constitution: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”) The Supreme Court has huge, wide-ranging jurisdiction because Congress granted it, not because of some constitutional preordained scheme.

The next Congress could, for example, decide that the Supreme Court will have no jurisdiction concerning the constitutionality of federal statutes. Congress could create a separate court for that or simply allow circuit courts to reach their own decisions. (The notion of having different laws in different circuits is not unprecedented. The Supreme Court does not take every case in which circuit courts have disagreed.) Congress could peel off other classes of cases — e.g., the constitutionality of state laws, disputes between Congress and the executive — as well. Conservatives in the 1970s and 1980s, increasingly worried about an imperial Supreme Court, considered all sorts of measures to limit jurisdiction (e.g., taking away school busing cases). …

The Supreme Court could also be expanded by two or even four justices. The number of justices is a matter of statute, subject to the will of Congress. Since the Merrick Garland stunt, former attorney general Eric Holder has supported this approach. “If, in fact, they are successful in placing a justice on the court,” Holder said recently, “we need to think about court reform. And at a minimum, as part of that reform package, I think additional justices need to be placed on the Supreme Court.”…

The mistake that Republicans make is thinking there is some permanent victory they can obtain in defiance of popular will that is increasingly hostile to their agenda. As undemocratic as our system has become, a substantial majority of voters can ultimately work their will by electing a president and congressional majority of their liking. …

The permutations and possible outcomes are endless, but two things are not up for debate. First, Democrats will need a convincing win to achieve any of these measures, not to mention the rest of their agenda. An army of Ruth Bader Ginsburg admirers marching to the polls can increase their chances of a convincing victory.

Second, let’s stop the silly moaning that “Republicans cannot be stopped” or that “the right will own the Supreme Court for decades.” Nonsense. Ultimately, the people decide — and there is every reason to believe that the people have no stomach for a Republican world in which millions lose health-care coverage, abortion is criminalized in many states, LGBTQ rights are undone, states can eviscerate voting rights and the executive branch gets a free pass to do whatever it pleases. November will become a referendum not only on all these issues, but on the Republican effort to impose minority rule of overwhelmingly White conservative states on the rest of the country.