Ruth Bader Ginsburg, the oldest member of the U.S. Supreme Court, died last month at 87. She had suffered numerous bouts of cancer.
Ginsburg鈥檚 death has turned November鈥檚 presidential election into a potential firestorm. Not that it was ever going to be decorous. Half the country loathes Donald Trump, and considers him a wolf in wolf鈥檚 clothing.
The other half thinks Joe Biden is senile, and considers him a sheep in sheep鈥檚 clothing. As Henry Kissinger said of the Iraq/Iran war, it鈥檚 a pity they can鈥檛 both lose.
Before Ginsburg鈥檚 death, there were four left-leaning judges on the court and five who were nominally conservative. 鈥淣ominally鈥� because Chief Justice John Roberts hasn鈥檛 been reliably right-wing.
But if Ginsburg is replaced with a solidly conservative judge, the right/left balance becomes six to three, and the court takes on its most politically tilted posture in a generation.
The Democrats, understandably, are demanding that Ginsburg鈥檚 seat remain vacant until the election is over. Indeed, more than that, Senate minority leader Chuck Schumer has threatened that if a Trump nominee is confirmed this year, 鈥渘othing is off the table.鈥�
This may mean that if Biden becomes president and the Democrats take the Senate, additional judges could be appointed to the court, something Franklin Roosevelt attempted but failed to accomplish.
It鈥檚 been suggested that the lower courts could also be packed with left-leaning judges. We might even see the District of Columbia and Puerto Rico elevated to statehood, ensuring four additional Democratic senators.
Notably, when Biden and his running mate Kamala Harris were asked straight out if their party would pack the Supreme Court, both refused to answer.
The reason, I suspect, is that if they replied truthfully 鈥測es,鈥� the Republicans would have a solid excuse for doing so first if they win the election.
So where does this leave us? Trump has already nominated a religious conservative, Amy Coney Barrett, and Senate Majority Leader Mitch McConnell has promised a vote during the current session.
But do they mean business? No doubt the Democrats will try to stall the process.
In addition, some Republican senators have indicated they might not be on board.
But supposing for a moment that McConnell can move a vote along, should he?
He鈥檚 certainly going through the motions. Not doing so would infuriate his party鈥檚 base.
On the other hand, actually confirming Barrett would enrage Democratic voters, and drive them to the polls in greater numbers than Biden鈥檚 low-energy campaign might deliver.
That said, my sense is there鈥檚 no real choice here. One of Trump鈥檚 strengths with his supporters is that he鈥檚 a man of his word. He keeps his promises, so far as a divided Congress will permit.
But one of his central commitments was to choose conservative judges. And not just name them, but get them confirmed.
Moreover it鈥檚 widely speculated that the election results will be challenged in court, unless the winning candidate chalks up an overwhelming victory.
But if RBG isn鈥檛 replaced beforehand, and the top court splits four to four, what then? Theoretically, in such a situation the lower court鈥檚 ruling is upheld. But what if there are numerous and contradictory rulings, with each party shopping for friendly judges?
Whatever happens, it鈥檚 beginning to feel like the U.S. is headed for a complete meltdown. The country is already in many respects a geritocracy. Trump and Biden are in their 70s.
Mitch McConnell is 78. The Speaker of the House, Nancy Pelosi, is 80.
The chair of the House Judiciary Committee, Dianne Feinstein, who has been leading the hearings into Amy Barrett, is 87 and clearly in mental decline.
And now we have the parties playing Russian roulette with the U.S. Constitution.
When courts are packed to ensure the 鈥渞ight鈥� decision, any semblance of objectivity is gone.
When new states are proclaimed to give one party an advantage, the very fabric of the country is torn up.
And if a lame-duck administration attempts to jam through a last minute appointment to the top court, you can kiss goodbye to orderly government.
It鈥檚 almost 160 years to the day since the American Civil War began. We might see a repeat in 2021.
