There would never be a good time for Ruth Bader Ginsburg’s death, but it is particularly untimely in this crucial moment. It would appear to give Trump and McConnell an opportunity to weld a reliable 6-3 conservative majority on the Supreme Court for the foreseeable future. Needless to say, even if Biden wins and the Dems retake the Senate, this would be a huge obstacle to enacting any progressive legislation, legislation which is crucial to the future of the economy, the environment, racial justice, voting rights, and so much more.
Regardless of Democratic enthusiasm, concern, engagement — if McConnell wants to push through a nominee, the odds are he can. While possible, I think it is unlikely that 4 Republican Senators would withstand the enormous pressure Trump, McConnell, and the base can bring to bear to prevent defections; particularly if Trump appoints a Justice that they find attractive, such as Barrett or Lagoa. Moreover, Democrats risk blowback if they contest the nomination too vigorously — there is some evidence that the contentious Kavanaugh hearings energized Republican voters just enough to keep the Senate in Republican hands. So this is not risk-free for the Democrats.
But don’t give up yet. There is at least one way to provide a chance to preserve a seat for the new President, hopefully Biden. It involves an inside game and an outside game.
The inside: Tell McConnell privately, no publicity (so he can save face, a very important consideration in any negotiation), that he has a simple choice. If you confirm a Supreme Court nominee before January 20, on January 21 the Democrats, if in control of the Senate, will eliminate the filibuster and create 80 new judgeships for the Courts of Appeals, 250 new district judges, and 6 new Supreme Court Justices — all appointed by Joe Biden and confirmed rapidly by the new Democratic Senate. Faced with such a stark choice, and the real possibility of his crowning life’s work of reshaping the Federal judiciary go up in smoke like that of the cancer sticks he chain smokes, McConnell may be willing to hold off on the confirmation in exchange for a pledge from the Dems not to expand the courts.
The outside game is simple: If McConnell doesn’t accept the deal and rams a nominee through, the Democrats do everything they threatened.
What if Trump wins, and the Republicans retain control of the Senate? Trump and McConnell get their Justice — nothing you can do about that. But if that doesn’t happen, we’ve saved the Court from a 6-3 conservative hegemony for the foreseeable future — and have avoided breaking another norm, preserving some shred of legitimacy for our democratic institutions.
Will it work? Probably not, it would require rationality and good faith on the part of at least four Republican Senators — characteristics in short supply. But it’s worth a shot.