# Ruth Bader Ginsburg's replacement nomination fight **URL:** \ **Category:** Great Debates\ **Created:** [March 25, 2017, 7:15pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020 "2017-03-25T19:15:08Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![tim314](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tim314/32/3468_2.png) [@tim314](https://boards.straightdope.com/u/tim314)\ **Post date:** [March 26, 2017, 4:36am UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/41 "2017-03-26T04:36:14Z")
> [@D\_Anconia](#): > > Ginsburg? 😕 Yes, the thread is about what happens if Ginsburg (the oldest member of the Court) dies or retires due to illness while Trump is President. The suggestion here was it’d be OK for the Dems as long as she lasts past the next election. Unfortunately, the particular seats that are up for grabs make it very unlikely that the Dems retake the Senate in 2018. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [March 26, 2017, 4:38am UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/42 "2017-03-26T04:38:23Z")
> [@tim314](#): > > Indeed, I’m aware people think that, which is why I thought perhaps that was where **Bricker** might be going with this. But I think the folks who think that are wrong. If the Republicans are willing to nuke the filibuster for Gorsuch (and I’m pretty sure they are) then I believe they’ll be willing to nuke it for the next nominee, too. The way I see it, to the extent that you’re sure they’d nuke the filibuster for Gorsuch, the Democrats have nothing to lose by not-getting-it-nuked now – because there’s at least _some_ chance that an intact filibuster would be useful against the next one. Sure, it’s maybe low odds – but it’s _some_ odds. What are the odds if the filibuster gets nuked now? Maybe things will be different closer to election time, if that vote comes near election time. I mean, yeah, granted, maybe things won’t get better; but it might, and I don’t see that it could really get worse. So what is there to lose? ---
**Author:** ![D\_Anconia](https://avatars.discourse-cdn.com/v4/letter/d/67e7ee/32.png) [@D\_Anconia](https://boards.straightdope.com/u/D_Anconia)\ **Post date:** [March 26, 2017, 4:40am UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/43 "2017-03-26T04:40:21Z")
> [@tim314](#): > > Yes, the thread is about what happens if Ginsburg (the oldest member of the Court) dies or retires due to illness while Trump is President. The suggestion here was it’d be OK for the Dems as long as she lasts past the next election. You’re right, my mistake. ---
**Author:** ![Silver\_lining](https://avatars.discourse-cdn.com/v4/letter/s/aca169/32.png) [@Silver\_lining](https://boards.straightdope.com/u/Silver_lining)\ **Post date:** [March 26, 2017, 9:01am UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/44 "2017-03-26T09:01:34Z")
> [@Bricker](#): > > 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? There is a rule to shorten fillibusters. By a majority vote, Rule XIX can shorten the tile members are able to filibuster. Rule XIX prohibits any senator from giving more than two speeches on any one question during the same legislative day. So the best the Democrats could do is hope for a bombshell to withdraw a candidate, but if that does not happen the cost will be their time and energy. No one knows how much time Ruth Ginsberg has left to live. She might be able to live through one term of Trump as President, but those in the life insurance business will tell you with her age and medical history, two terms are unlikely. With all the focus on the supreme court and fake news from both sides, the real political story is 2018. Democrats are in real trouble. Far more of them must defense their seats in the senate, and too many of them live in red states. Look for the Republicans to widen their lead in the senate. ---
**Author:** ![Budget\_Player\_Cadet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/budget_player_cadet/32/205_2.png) [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)\ **Post date:** [March 26, 2017, 9:13am UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/45 "2017-03-26T09:13:16Z")
> [@Bricker](#): > > I’m trying to understand what tactics might unfold. …Murder? Only half joking. In a democracy, norms matter nearly as much as laws when it comes to ensuring the system keeps running. One side has _consistently_ flouted, ignored, and destroyed these norms, and it has caused the system to stop working as intended. How much further can they push before someone decides that the norm “I will not disobey the law for political gain” is another one worth flouting, and starts taking potshots at Clarence Thomas? It’s basically that, or sit there and take it. Which I’m sure the democrats will keep doing. ---
**Author:** ![Fiveyearlurker](https://avatars.discourse-cdn.com/v4/letter/f/da6949/32.png) [@Fiveyearlurker](https://boards.straightdope.com/u/Fiveyearlurker)\ **Post date:** [March 26, 2017, 2:32pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/46 "2017-03-26T14:32:14Z")
As a side question, let’s say Trump is still president in 2019 and RBG steps down. Would the GOP have the nerve to actually nominate and confirm a new justice after falling all over themselves while setting this new precedent surrounding the final year of a presidency? ---
**Author:** ![FlikTheBlue](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fliktheblue/32/10972_2.png) [@FlikTheBlue](https://boards.straightdope.com/u/FlikTheBlue)\ **Post date:** [March 26, 2017, 4:03pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/47 "2017-03-26T16:03:20Z")
Whoever Trump nominates would be confirmed. In this scenario my hope would be that Roberts will see what’s going on and flip to what’s left of the liberal side of the court. If not then it’s hold on tight and hope things are more favorable for the Democrats when Thomas retires and a left leaning justice can replace him. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [March 26, 2017, 4:11pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/48 "2017-03-26T16:11:26Z")
> [@Fiveyearlurker](#): > > As a side question, let’s say Trump is still president in 2019 and RBG steps down. Would the GOP have the nerve to actually nominate and confirm a new justice after falling all over themselves while setting this new precedent surrounding the final year of a presidency? In 2019, sure. Why wouldn’t the Republicans cooperate with a Trump nomination? Trump’s first term of office ends January 2021, assuming he makes it through until then. Answering the question I think you are asking… What if RBG dies February 2020… similar time frame in relation to upcoming election as Scalia’s death. I assume the Republicans would totally ignore the noble Biden Rule precedent they fell all over themselves for in stonewalling the Garland nomination. That presumes the Republicans still hold the Senate majority, a pretty decent bet IMHO. If by some chance the Democrats hold the Senate then I presume they would stonewall any nominee not to their liking citing the Republican’s actions with Garland as precedent. Fair enough. Maybe, just maybe, the Dems would confirm Garland in that circumstance should Trump put his name forward. But they might even refuse Garland, making a similar bet that the Republicans did. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [March 26, 2017, 5:07pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/49 "2017-03-26T17:07:56Z")
Bricker, Your threads draw out the most comical SDMB responses (“Garland’s seat” / “extrajudicial” / “One side has _consistently_ flouted, ignored, and destroyed these norms”) Gorsuch is a particularly-bad hill for the Dems to die on, but their base isn’t giving them a choice. Assuming the filibuster is gone for the next nominee and they’re not in the majority by then, there’s nothing they can do. The next nominee has to make sure they appeal to the moderate Republican Senators, and if they succeed, they’ll get confirmed. ---
**Author:** ![marshmallow](https://avatars.discourse-cdn.com/v4/letter/m/df705f/32.png) [@marshmallow](https://boards.straightdope.com/u/marshmallow)\ **Post date:** [March 26, 2017, 5:52pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/50 "2017-03-26T17:52:31Z")
> [@tim314](#): > > My assumption is that in the scenario described in the OP, the Democrats are screwed. ☹ “You can breathe. You can blink. You can cry. Hell, they’re all gonna be doing that.” - Negan ---
**Author:** ![Budget\_Player\_Cadet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/budget_player_cadet/32/205_2.png) [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)\ **Post date:** [March 26, 2017, 6:40pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/51 "2017-03-26T18:40:11Z")
> [@HurricaneDitka](#): > > Bricker, > > Your threads draw out the most comical SDMB responses (“Garland’s seat” / “extrajudicial” / “One side has _consistently_ flouted, ignored, and destroyed these norms”) Well shit, I dunno about you, but I thought “the president gets to pick a supreme court justice” was a pretty darn ingrained norm of our political system. That’s now gone. > [@](#): > > Gorsuch is a particularly-bad hill for the Dems to die on, but their base isn’t giving them a choice. Assuming the filibuster is gone for the next nominee and they’re not in the majority by then, there’s nothing they can do. The next nominee has to make sure they appeal to the moderate Republican Senators, and if they succeed, they’ll get confirmed. Okay. Let’s assume that Gorsuch doesn’t get filibustered, and a year from now, RGB dies. The democrats decide to filibuster, because if they don’t, we end up with a court that will overturn Obamacare, Roe, and Obergfell. In what universe do we not have _exactly_ the same scenario, where the filibuster gets removed and the nominee gets accepted? I’m a _little_ lost, I gotta admit. ---
**Author:** ![Sam\_Stone](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Sam\_Stone](https://boards.straightdope.com/u/Sam_Stone)\ **Post date:** [March 26, 2017, 7:07pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/52 "2017-03-26T19:07:54Z")
> [@tim314](#): > > Indeed, I’m aware people think that, which is why I thought perhaps that was where **Bricker** might be going with this. But I think the folks who think that are wrong. If the Republicans are willing to nuke the filibuster for Gorsuch (and I’m pretty sure they are) then I believe they’ll be willing to nuke it for the next nominee, too. Yes, but the political price they would pay then will be higher. The problem for the Dems is that Gorsuch is seen as a very good, relatively mainstream jurist with impeccable credentials. There is widespread agreement among legal scholars that he is fully qualified to sit on the court. He comes across as thoughtful and moderate in temperament. If they filibuster him, especially for the ‘Scalia’ seat which would retain the court’s ideological balance, it will be seen as petulant and obstructive. On the other hand, if they send him through, then later on when Ginsberg or someone else retires or dies, the Democrats can then go ballistic if Trump tries to replace them with a conservative, and they can show their willingness to confirm Gorsuch if they are accused of just being obstructionist. Either way, Trump can get both nominees through so long as Republicans control the Senate. But if you are going to filibuster one of them (and force Republicans to eliminate the filibuster), it would be much better to do it with his second pick than with the first. ---
**Author:** ![Sam\_Stone](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Sam\_Stone](https://boards.straightdope.com/u/Sam_Stone)\ **Post date:** [March 26, 2017, 7:10pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/53 "2017-03-26T19:10:19Z")
There is one scenario under which it might be better to force Republicans to break the filibuster now, and that’s if you think they might get a filibuster-proof majority in 2018. And given the electoral map and the number of seats the Democats have to protect next time, there’s an outside chance that could happen. ---
**Author:** ![HurricaneDitka](https://avatars.discourse-cdn.com/v4/letter/h/96bed5/32.png) [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)\ **Post date:** [March 26, 2017, 7:24pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/54 "2017-03-26T19:24:52Z")
> [@Budget\_Player\_Cadet](#): > > Okay. Let’s assume that Gorsuch doesn’t get filibustered, and a year from now, RGB dies. The democrats decide to filibuster, because if they don’t, we end up with a court that will overturn Obamacare, Roe, and Obergfell. In what universe do we not have _exactly_ the same scenario, where the filibuster gets removed and the nominee gets accepted? I’m a _little_ lost, I gotta admit. The scenario would be if the nominee weren’t as strong as Gorsuch or it were closer to the election, you might have enough Republican Senators balk at the nuclear option to matter. ---
**Author:** ![Falchion](https://avatars.discourse-cdn.com/v4/letter/f/a88e57/32.png) [@Falchion](https://boards.straightdope.com/u/Falchion)\ **Post date:** [March 26, 2017, 7:38pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/55 "2017-03-26T19:38:38Z")
> [@Budget\_Player\_Cadet](#): > > Okay. Let’s assume that Gorsuch doesn’t get filibustered, and a year from now, RGB dies. The democrats decide to filibuster, because if they don’t, we end up with a court that will overturn Obamacare, Roe, and Obergfell. In what universe do we not have _exactly_ the same scenario, where the filibuster gets removed and the nominee gets accepted? I’m a _little_ lost, I gotta admit. There are members of the Senate (typically the older ones) who genuinely believe in the Senate rules and like the filibuster as “long view” means of keeping both parties under control. (On both sides. Carl Levin struck me as sincere.). If there is a vacancy from one of the liberal justices, the principle of the filibuster might get enough Republican defections to avoid appointing a Pryor to replace Ginsburg. You’re not going to get a Ginsburg clone, but you might get a justice (like O’Connor) who takes stare decisis seriously. But if you stand your ground on Gorsuch, the filibuster will go away, and it’s true believers here on out. I have no idea who benefits in the long term. (The argument against the nuclear option has always been one of MAD. Senator Obama spoke eloquently about it in 2005. He was right. Reid pulled the trigger. Maybe there’s no going back and none of the above matters). ---
**Author:** ![Sam\_Stone](https://avatars.discourse-cdn.com/v4/letter/s/ecccb3/32.png) [@Sam\_Stone](https://boards.straightdope.com/u/Sam_Stone)\ **Post date:** [March 26, 2017, 8:00pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/56 "2017-03-26T20:00:53Z")
That’s the real problem. Once one side shows a willingness to dump the filibuster when it suits them, the other side is forced to do the same or suffer permanent disadvantage. I like the filibuster. It has the advantage of making sure that rules have enough compromise in them that at least moderates on the other sde can accept them. It keeps government from wildly careening from one extreme to the other every time there is a party change in Washington. But the failure of the filibuster is owned by Harry Reid. He foolishly thought he could break it for his own purposes, while leaving it in place for the Supreme Court. But once he telegraphed the Democrat’s willingness to break longstanding rules when it suited them, there was no chance the Republicans would abide by his terms, because they now assume that if the Democrats get a chance to nominate a liberal and the Republicans attempt a filibuster, they’ll nuke it just as they did with the lower courts. So now it’s a free-for-all, unfortunately. ---
**Author:** ![Budget\_Player\_Cadet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/budget_player_cadet/32/205_2.png) [@Budget\_Player\_Cadet](https://boards.straightdope.com/u/Budget_Player_Cadet)\ **Post date:** [March 26, 2017, 8:20pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/57 "2017-03-26T20:20:22Z")
> [@Sam\_Stone](#): > > That’s the real problem. Once one side shows a willingness to dump the filibuster when it suits them, the other side is forced to do the same or suffer permanent disadvantage. > > I like the filibuster. It has the advantage of making sure that rules have enough compromise in them that at least moderates on the other sde can accept them. It keeps government from wildly careening from one extreme to the other every time there is a party change in Washington. > > But the failure of the filibuster is owned by Harry Reid. He foolishly thought he could break it for his own purposes, while leaving it in place for the Supreme Court. But once he telegraphed the Democrat’s willingness to break longstanding rules when it suited them, there was no chance the Republicans would abide by his terms, because they now assume that if the Democrats get a chance to nominate a liberal and the Republicans attempt a filibuster, they’ll nuke it just as they did with the lower courts. So now it’s a free-for-all, unfortunately. Wait, hang on, _Harry Reid_ is at fault? Not gonna give any of that fault to the party that seemingly on principle used the filibuster for _everything_, including neutering cabinets they didn’t like by refusing _any_ nominee to the CFPB and NLRB? This smacks me as more than a bit revisionist. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [March 26, 2017, 8:21pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/58 "2017-03-26T20:21:13Z")
You conservatives talking about how Gorsuch’s qualifications affect the politics of opposing him have learned nothing from your own Party’s political strategies. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [March 26, 2017, 9:08pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/59 "2017-03-26T21:08:33Z")
I agree the nominee’s qualifications are only tangentially relevant. It may help craft a narrative but nearly all nominees will be qualified (excl Myers). After that it’s just politics. And I do think Reid opened the door here. I think the conversation would be different had Reid not taken the action he did. We may still be talking about nuking the filibuster but it would be a steeper hill to climb. At this point I’d think they just get on with it - shit or get off the pot. Hell, nuke it and confirm Gorsuch in the same vote - at least that’d be more efficient. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [March 26, 2017, 9:33pm UTC](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020/60 "2017-03-26T21:33:39Z")
> [@Richard\_Parker](#): > > You conservatives talking about how Gorsuch’s qualifications affect the politics of opposing him have learned nothing from your own Party’s political strategies. We learned the lesson you taught us with Bork. [Previous page](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020.md?page=2) [Next page](https://boards.straightdope.com/t/ruth-bader-ginsburgs-replacement-nomination-fight/783020.md?page=4)