Ruth Bader Ginsburg's replacement nomination fight

This is a jumping off point for a debate with the following hypothetical predicates:

(1) Democrats filibuster Gorsuch;
(2) Republicans remove the filibuster rule for Supreme Court nominees;
(3) Gorsuch is confirmed to the seat held by Scalia;
(4) RBG suffers a decline in health (God forbid), wins the lottery, or encounters some other set of events that lead to her absence during the Trump administration.

I regard these as reasonable suppositions for the purposes of a debate, but if you can’t resist fighting one of the hypotheticals, I’d ask that you recognize that the purpose of this thread is to not fight those hypotheticals.

What approach might the Democrats bring into play to derail the Trump nominee? Unlike Gorsuch for Scalia, a NewGuy for RBG would shift the ideological balance of the Court, and presumably be of far greater concern – certainly not of LESS concern, anyway – than the Gorsuch confirmation we are playing out now.

Trump’s already published a list of judges he regards as good candidates; it’s one of the very few things he’s done with which I find myself simpatico. But would he even stick to it? No reason he shouldn’t. . . except for the track record he has of defying norms of political behavior. Would he go into crazy mode and pick someone new, and crazy, secure in a filibuster-free Senate?

I have the idea (or maybe just the forlorn hope) that he’d stay with the list, but from the Democrats’ perspective, that’s probably still unacceptable, especially as a replacement for the brilliant RBG.

What would happen?

If RBG dies, I expect not only full nuclear, but for there to be Taiwan Sunflower-type protests; a lot of protesters from the political left possibly entering the Capitol, or besieging the outside of the Capitol, to try to prevent a conservative replacement from having Congressional hearings (I do expect Trump to nominate a right-winger to replace Ginsburg.) This will probably go on for weeks. Bork and Gorsuch hearings will seem tame by comparison.

In the end, the nominee will still pass, perhaps by a 50-50 vote with Pence breaking the tie.

By the way, if the filibuster is nuked during Gorsuch hearings, is there even a need for a Congressional hearing on RBG’s replacement? Could Trump just nominate and get 50+1 Republican Senators to sweep the nominee through, no hearing?

And deny the Republican Senators of their free press time?

I don’t know of any legal requirement for a hearing. Politically, I suspect that the cost of not even holding a hearing would be high.

One of the problems with the “go crazy” theory is: Who does he pick? The GOP still has a bit of Souter syndrome, so they’re not going to confirm an unknown quantity. Assuming he’s replacing Ginsburg, I think there will be a lot of pressure to pick a woman. And, of course, they’ll want someone young.

So he’ll nominate someone like Allison Eid or Joan Larsen (maybe Meg Ryan) (an interesting move would be someone like Thapar, who’s been nominated to the Sixth Circuit, and hope for a diversity counterbalance). And the Democrats will go crazy. And the nominee will be confirmed.

The GOP has already revealed the playbook for this, no? They simply make every vote contingent on this. No debt ceiling, etc., until Trump appoints a moderate.

The only open question is whether the country would support that. Hard to say.

At the moment, there’s a Republican president and a Republican majority in the Senate. That means that the Republicans get to choose who fills vacancies on the Supreme Court. Gorsuch will become a Supreme Court justice, and any future vacancies will be filled by a right-leaning nominee chosen by Trump. If the Democrats want to change this, they need to start winning elections.

Could be. In the past few years, there’s been a constant in American politics: leftists are good at holding protests, and bad at holding protests that accomplish anything.

Sure. Except that so far as I can tell, the Democrats don’t have the votes to enforce such a plan.

I would not put it past Trump to nominate Ann Coulter, though. Since you ask about crazy.

But the whole process only lasts a few months. Are you suggesting they would continue to block “everything” even after the nominee is confirmed?

That’s fair. There is a collection of lawyers (Laura Ingraham is another) who would be viewed a pretty extreme. I think they would face some serious GOP defections, though.

I’m not convinced that Trump particularly cares about the courts. I think he’s going to be happy to leave the decision to others. Which is likely going to be good for people who think like you and I do. Bad for those who don’t. But probably pretty boring all around.

(One outlier on prediction is timing. Bush nominated a collection of judges who would have been likely picks, who are simply too old now -Sykes, Janice Rogers Brown, much of the Fifth Circuit. Trump is going to have an opportunity to appoint a body of appellate judges that he can draw from. Roberts was only a judge for two years).

Depends on the timing I suppose. There’s often some must-pass piece of legislation out there, especially since we don’t do normal appropriations anymore. I can imagine a post-confirmation strategy that uses that confirmation as a basis for complete obstruction, too (demanding whatever ridiculous thing as a condition).

Hopefully Democrats would do what the GOP would not and put country over party. But I’m not sure I’d count on it. McConnell taught them that there’s no price to pay for political nihilism, at least among the GOP electorate. The question is whether Dem voters are more patriotic than GOP ones. They might be, but again, I wouldn’t count on it.

This assumes GOP will kill the filibuster altogether. Maybe. If so, that’s a definite win.

How don’t they? The plan is that they nuke the filibuster on Supreme Court justices, not the entire filibuster. So the Democrats can still block anything in the Senate.

The Senate can easily flip again, and, without any filibuster, Republicans would be completely powerless in the Senate. Most of the reactionaries are in the House, not the Senate. And they’d need pretty much everyone on board to pull it off.

If you try and eliminate that, then the solutions become extrajudicial. We will not let Evil take over our country. And that’s what your “textualism” is. It removes morality from the equation, which makes it Evil.

I’m not sure what difference it makes if the Republicans nuke the filibuster over Gorsuch, or if they nuke it over some future “even worse” nomination. It seems both scenarios end with Gorsuch and Hypothetical Judge on the bench, and no filibuster. What’s the advantage to hanging on to it for the next nom?

The only advantage is just in case there isn’t a next nomination during Trump’s tenure. Unlikely, but possible.

Of the great many things that have come out of the Trump camp, he did stick to his pledge to choose a SCOTUS nominee from his list of potential nominees. I wouldn’t be surprised in the least if a RBG replacement nomination comes from the same list.

There are three possible scenarios in my mind, depending on whether the nomination is before or after the 2018 midterms and the results of those elections.

  1. If before the election, then the dynamics play out like the Gorsuch nomination on steroids. Nomination of a conservative jurist would be met with protests, sit-ins, attempts to physically disrupt the process (though I think the Capital Police can prevent any chained-to-the-doors type extremis). The Republicans drop the nuclear option if the Gorsuch nomination didn’t require it already. And the court’s ideology swings.

  2. It is possible that the Senate makeup would change at the midterm, though odds seem long that Dems would have an outright majority. If they do then they actually have the power to stop a nomination. And they would, dragging it out until after the 2020 election if that is what it takes.

  3. And if the midterms keep the Senate under Republican control then despite the wailing and gnashing of teeth by those in opposition the Senate will confirm a conservative RBG replacement. If, by chance, the Republicans were able to pick up the needed seats in the Senate they might be able to push a confirmation through without nuking a filibuster if ti still exists by then.

huh? Wouldn’t Dems want the filibuster gone in that scenario?

Ok, I’m going to come out as thinking that forcing the Republicans to nuke the filibuster now is a mistake. It would carry much more weight if that was done on the next nomination, supposing as the OP does that it’s to replace Ginsberg.

If it was done now, the story gets swept into the Garland revenge story as a footnote. It gets overshadowed by full supreme court again and Trump’s first pick stories. It’s just uninspiring tactic generally.

If it’s done when the court is about to be swung, it accentuates that story. Since the Dems don’t have the votes, they need hardcore public support and when the balance of the court is up for grabs, that’s when you push all your chips in. The Republicans know this. Why do you think they weren’t punished for their no-hearing shenanigans? Why do you think so many reasonable Trump hating Republicans you know held their nose in the voting booth?

I think the “shame” of nuking the filibuster is probably a negligible liability but you lwoukd probably best use it in a more important battle.