"With less than 50 days until the election and voting already underway in many states, it's important that we demand all senators pledge not to move forward with any nominee until after the next inauguration."
That's according to a new petition from MoveOn.org, now signed by over 780,000 people, urging the GOP-controlled Senate to honor the dying wish of U.S. Supreme Court Justice Ruth Bader Ginsburg and allow the victor of this year's presidential contest to choose her replacement.
As early voting was getting underway in some states for this year's general election—in which President Donald Trump is facing off against Democratic nominee Joe Biden—the liberal justice died Friday night at the age of 87, sparking an intense battle over what to do about her empty seat.
— MoveOn (@MoveOn) September 19, 2020
Senate Majority Leader Mitch McConnell (R-Ky.) swiftly made clear that Trump's third nominee to the court would get a vote in the upper chamber—eliciting charges of hypocrisy from Democratic lawmakers, advocacy group leaders, and others opposed to a pre-election appointment. They all pointed to McConnell's infamous decision to block outgoing President Barack Obama's nomination of Merrick Garland in 2016.
"It would be a truly inexcusable act of hypocrisy and injustice for Trump and Senate Republicans to move any nomination forward," declares the MoveOn.org petition, reiterating that ballots are already being cast. Biden, in a Sunday speech at the National Constitution Center in Philadelphia, urged GOP senators, "Please follow your conscience."
Joe Biden is politely asking a group of cyborg T-1000 Terminators to follow their conscience https://t.co/DJggvsrUeX
— David Sirota (@davidsirota) September 20, 2020
Republican Sens. Lisa Murkowski of Alaska and Susan Collins of Maine—who is up for reelection this cycle—have said they oppose voting on a nominee before November 3. However, they were both silent on the possibility of a lame-duck session vote, and at least two more members of the GOP would have to join with them and all Democrats to block the confirmation of another right-wing justice—an appointment that, without significant reforms, could alter the court's makeup for decades.
While joining the ranks of those calling out McConnell for "breathtaking hypocrisy, " Loyola Law School professor Jessica Levinson wrote Saturday in an NBC News op-ed that "we should at some point just be honest. McConnell is seizing on Ginsburg's death as an opportunity to solidify the conservative leaning of the Supreme Court for decades to come—as we knew he would. This is about raw partisan power. There is no legitimate explanation beyond that. Sometimes things are exactly as they appear."
— Scott Utterback (@Utterback13) September 19, 2020
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Given McConnell's pledge to hold a vote on Trump's next pick for the court, set to be announced next week, University of Northern Iowa professor C. Kyle Rudick wrote Sunday for Common Dreams that "charges of hypocrisy are insufficient to change the course of the RBG's replacement or, in fact, in other Republican attempt to race-bait, disenfranchise voters, or increase the wealth of the affluent. Each of these things are not inconsistent with the party's actual agenda—power for the sake of power."
"Of the many lessons we must take from Justice Ginsburg's life, perhaps none is more prescient than the need to reject the temptation of pessimism and embrace the grit and determination it takes to see every fight to the end."
—Fatima Goss Graves, NWLC
"Democrats are starting to wake up to this reality. They are considering, if elected in sufficient numbers, to remove the filibuster rules and pack the courts," Rudick noted. "Only time will tell if they have the stomach, or the means, to pursue these types of goals. There is one thing that is that is for sure: Democrats will not win political power through accusations of Republican hypocrisy."
Declaring that now is the time for "constitutional jiujitsu," Jeffrey C. Isaac of Indiana University, Bloomington offered Democrats some suggestions. "The Senate Democratic leadership should strategize about the entire range of legislative tactics that can be employed, now, to forestall a rushed SCOTUS replacement appointment," he wrote for Common Dreams. "This includes possible threats to eliminate the filibuster if the Democrats win back the Senate in November."
Although it remains possible that McConnell and Trump could force through a nominee, CNN legal analyst Jeffrey Toobin said Friday that he doesn't believe it is "a foregone conclusion." Now, he added, congressional Democrats can either "pretend they are powerless in this situation, or they can pick a fight for once."
Senate Minority Leader Chuck Schumer (D-N.Y.) reportedly warned the chamber's Democratic caucus on a Saturday call that "healthcare, protections for preexisting conditions, women's rights, gay rights, workers' rights, labor rights, voting rights, civil rights, climate change and so much else is at risk." Given that threat, Schumer said, "Let me be clear: If Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year. Nothing is off the table."
Despite the tough talk, some progressives have suggested that considering Schumer's track record of allowing Trump and McConnell to remake the federal judiciary with right-wing judges confirmed to lifelong posts, a primary challenge to the minority leader—who is up for reelection in 2022—could increase the pressure on him to use all tools at his disposable to prevent a third Trump justice on the nation's highest court.
— Paul Blest (@pblest) September 20, 2020
Some opponents of a Trump Supreme Court nominee are drawing inspiration from none other than RBG. As Fatima Goss Graves, president and CEO of the National Women's Law Center (NWLC), said on a Saturday call with leaders of civil and legal rights advocacy groups: "Of the many lessons we must take from Justice Ginsburg's life, perhaps none is more prescient than the need to reject the temptation of pessimism and embrace the grit and determination it takes to see every fight to the end."
In a Saturday Medium post arguing that "RBG deserves better than liberal defeatism," writer Will Oremus asserted that "hypocrisy has always been rampant in Washington, but it's usually easier to hide than this—and when you can't, it still doesn't sit well with a lot of voters." He continued:
To pretend that norms will constrain Trump or McConnell would be folly, yes. But for Democrats, the media, and the public to concede the ground in advance is to do their dirty work for them. To frame what should be a career-dooming level of hypocrisy as the obvious play, the shrewd political move, is to stand down and wave Senate Republicans through what should be a punishing political gauntlet. It lends credence to excuses like "that's just politics," or "the other side would do the same." It lets them off the hook.
"The New York Times' Jamelle Bouie had the right idea," Oremus added. "Democrats, he suggested, should pursue a two-track strategy that insists on tying Republicans to their 2016 words while at the same time threatening devastating retaliation, in the form of court-packing, should they go back on those words. 'You want no norms?' the Democrats should say. 'We'll show you what that looks like when we're in charge.'"