Ruth Bader Ginsburg Lights the Fuse

Before Justice Ruth Bader Ginsburg’s death certificate was signed, Judicial Warfare commenced.

Both sides, of course, were prepared for this moment.  Justice Ginsburg, seemingly indefatigable, was well into her ninth decade and had numerous collisions with cancer.  It’s cruel, but entirely expected, that the nation was not given a proper opportunity to honor her legacy and accomplishments which should command admiration from all Americans.  One need not agree with her judicial philosophy or her opinions to admire the breadth of her accomplishments, her work ethic, her intellect, her vision and her humanity.  Indeed, her storied friendship with the late Justice Antonin Scalia shows a nation overflowing with anger what is possible.

The efforts to recall her legacy were soon subsumed in partisan warfare.  The Democrats accused the GOP of monumental hypocrisy as they juxtapose their statements in 2016 when Judge Merrick Garland was nominated to their current proclamations that confirmation must now go forward.  The GOP, brushed this flip flop aside with some slight of hand claiming justification to proceed now since the Senate and the president are of the same political party.  I can barely grasp their point even after engaging in rhetorical contortions followed by linguistic acrobatics. 

Senators McConnell and Schumer Sharing Love

So, what’s next?  The GOP are poised to achieve confirmation prior to the presidential election.  Perhaps, this effort should be called Operation Warp Speed, instead of the COVID-19 vaccine development.   The Democrats can’t stop it but they won't soon forget this power grab!  If they capture the Senate, particularly with the rise of the political left wing, they will be pressured to consider adding justice seats or curtailing the justices’ lifetime appointments with shorter terms.  They will demand measures to ‘balance’ the court.  (Read:  install justices who will likely make rulings that Democrats want.)   Democrats are also understandably fueled by the shameless stiff-arming of Judge Merrick Garland 4 years ago.  If Biden wins, Judge Garland's Supreme Court opportunity may be rejuvenated.

And, then what happens when in the future the GOP recaptures the Senate?  For a hint, consider the words payback, retaliation and revenge.

But, let’s remember that the judicial fuse was first lit by Democratic Senator and Streetfighter Harry Reid who abolished the filibuster for confirming judges at all levels of the judiciary below the Supremes. 

Look, each side blames the other and crafts their own supportive narrative.  Here’s what I think.  If the Democrats retake the Senate, they should restore the filibuster for all judges at every level of the judiciary.  Our best chance to lower the hyperpartisan temperature, to foster collegiality and to achieve more balanced courts is to restore the status quo ante when both parties had to cooperate.  With the filibuster, neither side will be able to install extreme candidates as 60 votes will be needed for confirmation.  Indeed, the filibuster is a deep senate tradition that gives the minority party influence.  If the Democrats take over the senate, they might eliminate the filibuster entirely - a true nuclear legislative option - that would create more enmity between the parties, if this is even possible.

What is the probability that the Democrats would pursue my high road strategy if they take over the Senate?  Probably as likely as Senator Mitch McConnell inviting Senator Chuck Schumer to his porch on a lazy Sunday afternoon to shoot the breeze as they sip Kentucky bourbon. 

No, the Democrats will be out for blood.  And so the cycle will be perpetuated.  And who will be the real losers here?