Dear Media: Don’t Both-Sides the Power Grab for RBG’s Seat
Ruth Bader Ginsburg has died, and, because it is 2020, we do not have the luxury of just mourning. Because it is 2020, even she did not have the luxury of passing in peace; instead, her final statement was an exhortation for procedural fairness in the Senate. “My most fervent wish is that I will not be replaced until a new president is installed,” she reportedly said on her deathbed, dictating to her granddaughter. It’s a very specific fervent wish, because, of course, it being 2020, she knew her dying wish likely would be ignored. And so it was, mere hours into Rosh Hashanah, in the form of a statement from Senate Majority Leader Mitch McConnell.
Of course it was ignored! It’s 2020, trash fire of years and one in which the last thing anyone could dream of expecting from McConnell and President Donald Trump would be respect for institutions, norms, and the will of the American people. This is why RBG made this wish public.
While the honey still flowed at Rosh Hashanah tables — Have a sweet new year, try not to gag! Yeah, why don’t you wash that down with wine !— social media exploded with conjecture about what McConnell could and couldn’t do and what the same few not-totally-obeisant Republican senators would and wouldn’t do. Self-appointed experts confidently expressed rock-solid opinions (of the sort they’re somehow never held accountable for when they’re wrong).
I’m no naif. I know that, in theory, Trump and McConnell can rush a confirmation hearing through before the election, which is in a scant 45 days. But it is wildly inappropriate to do so and would be a completely naked power grab. So, media, do me and RBG a favor and don’t pretend otherwise.
The single scariest thing to me over the next few days is not the prospect of McConnell announcing a Senate vote. It’s the prospect of the media behaving as though that’s legitimate.
Media people, I beg of you: Do not do that thing where you pretend there are two sides here. There is only one side: That this is unprecedented and wildly corrupt.
I will take a deep breath and explain why, before addressing the shrieks of protest from the reply-guys I can already hear shrilling in my imagined timeline.
McConnell does not want to do this responsibly and does not care about fairness or norms.
Why is this unprecedented? Because no Supreme Court justice has been nominated and confirmed with only 45 days to go before a presidential election. The average time from nomination to vote is 69 days. The nomination cycle for Neil Gorsuch took two months; the nomination for Brett Kavanaugh took three (and would have taken longer had the requested records been produced and a proper investigation been made, but you know what, we’re just going to go purely on timing here). Warren Burger and John Paul Stevens were both confirmed within a month, it’s true, but neither appointment was made in an election year, or, you know, roughly within the time it takes for the eggs in your fridge to go bad. If you really want to go into the weeds and cite Oliver Ellsworth in 1796, nominated on March 3 and confirmed on March 4, knock yourself out, but that just makes you a pedant and a disingenuous one at that. It’s unprecedented. Full stop.
Why is this wildy corrupt? Because McConnell is a complete and total hypocrite who blocked the nomination a Democratic president made 237 days before the presidential election on the grounds that to do otherwise would be to usurp the will of the electorate. And we can give this to 2016 Mitch here — filling election-year vacancies is very unusual (the last time it happened was in 1940). But 2020 Mitch just has no leg to stand on. Scalia died 269 days before the election; Ginsburg, 46 days prior. And while it is true that the Constitution does not put restrictions on when presidents can make nominations, precedent has overwhelmingly established that restriction, and no precedent more overwhelmingly than the one established by McConnell himself.
I can hear the reply-guy tweets piling up already. I know, I know, pointing out GOP hypocrisy doesn’t change minds, shaming doesn’t work, power grabs are the Republican brand (just ask Stacey Abrams!). Who cares, it is the media’s job to frame this correctly.
Oh, did you have something to say about Harry Reid? Nice try, but it was McConnell who nuked the filibuster for SCOTUS confirmations. (That was the only way Gorsuch was confirmed.) McConnell is as zealous about confirming Republican judges as he is about blocking Dem nominees and legislation. Do not even.
Oh, you think RBG should have resigned while Barack Obama was president so he could have made a Dem appointment then? What about McConnell and the GOP makes you think an Obama confirmation was a sure thing? And why do you never hear conservatives calling for their justices to retire? (Clarence Thomas is 72, why doesn’t he make room?) If you’re looking for someone to blame, may I suggest James Comey? Yep, still applies.
Oh, are you going to “well actually” the McConnell rationale for blocking Garland as having to do with a president of one party and a Senate majority of another, so voters should be the ones to break an election-year tie? Sure Jan, that definitely explains all the other judicial appointments he blocked. If Mitch McConnell was truly interested in the will of the voters, perhaps he’d be more inclined to honor the 2016 popular vote, when 2.9 million more voters voted for Democrats. If Mitch McConnell was truly interested in the will of the voters, perhaps he wouldn’t have blocked election security bills for the last year and a half. If Mitch McConnell was truly interested in the will of the voters, he’d bring the new iteration of the Voting Rights Act in honor of John Lewis to the Senate floor for a vote, which he has thus far declined to do.
And even if you somehow lack the copious grains of salt with which to take the above, base pragmatism should surely kick in at some point, right? It’s just math — even if a nominee were announced on Monday, with just 43 days until the election, said nominee would still have to meet with senators, senators would have to diligently get up to speed on reams of opinions and briefing books, and a full and thorough confirmation hearing would have to be scheduled, leaving senators ample time to thoroughly vet the nominee. I mean, if the Senate wants to be sure the nominee has an appropriate temperament and no weird loans or skeletons in the closet and will respect established precedent, right? Right? At least give the nominee some time to dig up his or her 1980s calendars!
Starting Monday, there will be 43 days until the election, which actually amounts to 31 weekdays, until you knock off one for Yom Kippur and one for Columbus Day. So that’s just 29 workdays for a Senate body of 100 people who might also need some travel days and, let’s just say, are not all in a position to be pulling all-nighters doing their assigned reading like college students. Oh and we’re still in a pandemic. Everything’s going to take longer — just like the Covid-19 relief bill, eh Mitch? Gee whiz, however could this get done responsibly in such a short time?
It can’t. It won’t.
McConnell does not want to do this responsibly and does not care about fairness or norms. He wants to ram in a new SCOTUS judge on the eve of a hugely consequential and divisive election where the incumbent’s approval ratings are bottoming out and voter suppression is ramping up.
Stop trying to legitimize what isn’t legitimate. Stop trying to normalize what isn’t normal.
Media, we’ve been through this. Both sides-ism. This is the moment he became president. But her emails. This one is clear cut — and you have a duty to present it as such. This is a power grab pure and simple, it’s not normal, and there are no pat explanations that make it such.
There’s no way to have a SCOTUS confirmation hearing before the election without ramming it through, and there’s no way to do it in the lame-duck session if Trump loses. (If he wins, well then, the path is clear, and also, yikes.) If the Republicans try to do it, then the public needs to know that it’s unprecedented at best — and wildly corrupt, at worst. There’s no other way to spin it: With 45 days to the election, and early voting already started, it’s just too damn soon to nominate a new Supreme Court justice.
Ruth Bader Ginsburg knew this, of course. But she also knew Republicans would do it anyway. Which is why she said explicitly that her most “fervent wish is that I will not be replaced until a new president is installed.” Not before the election, and not in the lame duck — and you don’t need to read between the lines too hard to see that “until a new president is installed” is also a fervent wish.
She left one statement, and it was this one. She made it explicit. It wasn’t just a fervent wish: It was a directive, and a challenge, and a warning.
This is why RBG made this wish public. It was her last dissent.