Oct 2, 2020 6 min read

Ruth Bader Ginsburg’s death has revealed the true nature of the current Republican Party. It is not a conservative party, dedicated to preserving traditions and what is best from our history. It is corrupt party of wealthy elites that uses the white working class and evangelicals to support its business-friendly agenda by corrupting our institutions to allow it to maintain power in the face of a country that is ideologically moving to the left and in which its demographic base is shrinking.

If Trump’s Supreme Court nominee, Amy Coney Barrett, is confirmed, a number of issues that were decided in favor of the liberal position by one vote can now be reversed. Overturning Roe v. Wade and outlawing abortion has been the holy grail for social conservatives ever since it was decided. While the majority of the country does not want to overturn Roe, the decisions of the Supreme Court are not dependent upon being popular.

Obamacare was preserved by Chief Justice John Roberts in another 5-4 decision, but Barrett is on record criticizing Roberts’ decision, so she is likely to support the Trump Administration’s efforts to end Obamacare – eliminating health insurance for an estimated 23 million people in the middle of a pandemic. Barrett’s anti-regulation record also means that government efforts to protect the environment and worker safety will be restricted as well.

Senate Majority Leader Mitch McConnell announced within hours of RBG’s death that he planned to have the Senate vote on Trump’s nominee for replacing her. This violates the “rule” that McConnell created to prevent President Obama from naming a replacement when Justice Antonin Scalia died unexpectedly in February 2017, when he said no president should make an appointment to the Supreme Court in an election year. He argued that the people deserved a voice in the decision, so the appointment should come after the election. McConnell claims “the people” elected the current Senate, so they have an obligation to vote on the appointment. But in the last three elections that created the current Senate, the “minority” Democrats received almost 25 million more votes than the Republicans. Evidently the people only get a voice when they agree with the Republicans.

McConnell’s Machiavellian move was a significant factor in the election; Trump put out a list of possible appointees (created by the Federalist Society) that convinced a lot of Republicans who knew Trump was not well-suited for the presidency to vote for him in spite of their misgivings. Republicans play partisan politics for keeps.

The problem is that the Supreme Court has become so partisan it is losing legitimacy, a trend which Roberts tried to stem by occasionally siding with the liberals. To be effective, the court must be seen as reflecting the will of the people and the rule of law. The problem is that circumstance and adept hard-ball politics by the Republicans have given the court a Republican-appointed majority for 50 years, even though the Democrats controlled the presidency for almost half of that time. Confirmation of the 48-year-old Barrett is likely to ensure a conservative majority for the next 20 years.

In a democracy that reflects the will of the people, the presidential candidate who wins the most votes becomes president. But in two of the last three elections “won” by Republican candidates, they lost the popular vote. Those presidents appointed four of the five current conservative justices, and Barrett will make it five.

McConnell’s naked demonstration of raw political power may actually backfire. No doubt, this move will be popular with Trump’s base, but they’re generally motivated voters anyway. RBG has been an inspirational figure to many people on the left, but also some moderates who have appreciated the role she played in helping eliminate some of the laws that limited the roles of modern women. Crooked Media, a left-leaning company that hosts political podcasts, has a fund (“Get Mitch or Die Trying”), the proceeds of which it distributes to Democratic senatorial candidates it thinks can use them most effectively. The fund had less than $4 million prior to Ginsburg’s death; they raised $17 million the day after. I think the motivational advantage may go to the Democrats.

While some of the few undecided voters left might be attracted to McConnell’s naked power play, I think more people will be repelled by it. Most people want to play by the rules, and don’t admire people who change the rules so they can win.

The other reason this may fail is if the Democrats win the presidency and retake the Senate, both of which are possible, the Democrats will have the ability to expand the court. And one thing the Democrats have learned over the last decade or so is that playing by traditional rules while the Republicans don’t has not worked.

But the Democrats should not stop there. Once they’ve put themselves in a position of power, they should take the high road. The partisan polarization of the court needs to end. The Democrats (hopefully now with Republican support) need to reform the court. There are many different possible approaches, but two things that need to change are eliminating lifetime appointments and making sure appointments are made in a regular, scheduled fashion, so the balance of the court reflects the political success of the parties rather than the random work of the grim reaper. Having set terms would allow the appointment process to be predictable, and it would also discourage the appointment of very young, unknown justices, as the current system does.

Democrats should certainly fight to prevent confirmation, but the one thing they should not do is to limit their future legislative options in an effort to convince four Republican senators to vote against the nominee (promising not to pursue statehood for D.C. or Puerto Rico, e.g.). Ginsburg’s dying wish was that her replacement be appointed by the next president. The Republicans did not even wait until Ginsburg was buried to ignore that, but instead of bemoaning the hypocrisy of the Republicans, the Democrats need to use this opportunity to fix this broken system.

Kent James is an East Washington resident and has degrees in history and policy management from Carnegie Mellon University. He is an adjunct professor of history at Washington & Jefferson College.