RBG’s seat

Sean Rameswaram: Welcome to Today Explained, I'm Sean Rameswaram.

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Sean Rameswaram: The fight to fill Ruth Bader Ginsburg's vacant seat on the Supreme Court began approximately a couple of hours after we got the news that she passed. It's now been a couple of days. Ian Millhiser, you cover the Supreme Court for Vox. Where do things stand now?

Ian Millhiser: So in the most superficial way, things are very ordinary right now. There's a vacancy on the Supreme Court. The president plans to nominate someone. There's a Senate that's controlled by the same party. The Senate is likely to confirm that person. There'll probably be a hearing. And so if you don't know anything about what has happened in the last four years, this could feel very normal. Of course, it's not normal. And the reason why it's not normal is that there is an election coming up. And four years ago, the Republican Party was adamant, absolutely adamant, that there could not be a Supreme Court vacancy filled in an election year. The American people are perfectly capable of having their say, their say on this issue. So let's give them a voice. Let's let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee.

Sean Rameswaram: Right. And of course, the same Republican led the Senate then, who leads the Senate now. His name is Mitch McConnell. And he would not give Barack Obama an up or down vote on Merrick Garland in 2016 when Justice Antonin Scalia passed. But he seems happy to call a vote a few weeks away from this election. What is he saying about the, you know, hypocrisy? I mean, to the extent that they've tried to justify it at all.

Ian Millhiser: President Obama was asking Senate Republicans for an unusual favor that had last been granted nearly 130 years before then. But voters had explicitly elected our majority to check and balance the end of his presidency. So we stuck with the basic norm. Part of the mess that they've created for themselves is if four years ago when Justice Scalia died and President Obama named a replacement, if McConnell had just been honest then and just said, hey, we don't like you, Barack. We'd rather have Donald Trump pick the nominee and we've got the vote. So let me give you both middle fingers. Like the reason he's in a bind this time to the extent that he is in a bind is because he told an obvious lie four years ago.

Sean Rameswaram: And, you know, to what extent is he in a bind? Does he have enough of the party with him? I know people were holding out for Mitt, but now it looks like that's not going to work. I know he doesn't have Senator Collins from Maine and Senator Murkowski from Alaska. That's two. How many does he need?

Ian Millhiser: So Democrats need to flip four Republican senators to have a chance of blocking this nomination. There is only one way for us to have some hope of coming together again, trusting each other again, lowering the temperature, moving forward. And that is for four brave Senate Republicans to commit to rejecting any nominee until the next president is installed. It's very hard for Democrats to count to four. I mean, maybe it will happen. But when you look at the Senate, it is a mix of there's some people who are running for reelection, but they're probably more concerned about the right wing and angering their base than they are with what Democrats are saying. You've got a few retiring senators. You know, some people originally fixated on Lamar Alexander, who's retiring as a possible flippable vote. Alexander, you know, the statements that he's made suggest that he's going to back McConnell's play. So, you know, I can't see into the future. Maybe a miracle happens and a fourth vote materializes, but it does not seem likely.

Sean Rameswaram: How long does this process usually take? Because we only have a few weeks here until the election, right? So normally it takes about two or three months to fill a Supreme Court vacancy. I suspect that this one is going to move much quicker. It's not entirely clear whether it's going to happen before or after the election. But I think a lot is going to depend on what individual senators want to do. There might be some senators in close races who would prefer not to cast this vote until after that race has happened. So we don't know yet whether it's going to be before or after the election.

Ian Millhiser: So potentially senators who might get voted out of office in November would still have a vote on this Supreme Court nominee?

Sean Rameswaram: Yeah, no, this is one of the worst things about our Constitution is that after a party has lost power, it still holds on to it for a few months. And so we conceivably could have a situation where Joe Biden wins in a landslide, where Democrats pick up five, six, seven seats in the Senate. And yet the lame duck Republican majority confirms a justice, even though Republicans have just been repudiated at the polls.

Ian Millhiser: So this will be potentially President Trump's third Supreme Court nomination in his one term. What do we know about how he picks judges? White dudes? So far, it's been white dudes. I mean, this time he said he's going to pick a woman. Because I actually like women much more than I like men, I have to say. I will say this about Trump. So Trump has largely delegated his judicial selection process to conservative groups like the Federalist Society and to lawyers aligned with the Federalist Society. It's a very professional operation. I mean, it picks very, very right wing individuals, very ideological. The operation that picks them is very efficient. It's made up of committed ideologues who are very good at identifying other committed ideologues to sit on the bench. And because Trump has largely delegated this process to conservative operatives, it doesn't have the sort of goonish incompetence that pretty much everything else in the Trump White House has.

Sean Rameswaram: And do we know who he might choose? Does he have a shortlist?

Ian Millhiser: So I think it's overwhelmingly likely to be a judge named Amy Coney Barrett. Amy Coney Barrett is a favorite of the religious right. She's been very outspoken against abortion. I don't think that the core case that Roe v. Wade holding that, you know, women have a right to an abortion, I don't think that would change. But I think the question of whether people can get very late term abortions, you know, how many restrictions can be put on clinics, I think that would change. She's made some statements suggesting that she's likely to strike down the Affordable Care Act. You know, she would be an extraordinarily conservative judge or justice. She's already a judge. There are a handful of other names I've seen floated. Barbara Lagoa on the 11th Circuit, Alison Rushing on the Fourth Circuit. Alison Rushing, by the way, was a year below me in law school. She's 38 years old. So like a lot of these people just don't have very much experience. You know, I'm like the reason to pick someone like Rushing is that she's young and she'd be there for 60 years. But I think that it's overwhelmingly likely to be Amy Coney Barrett. And she's also very young. She's 48 years old. So either way, this justice that Trump picks is going to be on the court for a long time.

Sean Rameswaram: What sort of shift might they create in sort of the current ideology of the Supreme Court?

Ian Millhiser: So Chief Justice John Roberts has been the center of power at the Supreme Court since Justice Kennedy's retirement in 2018. And Roberts is really, really conservative. But he also believes in procedural regularity. There's a certain institutionalist streak to him. He hates stupid arguments. He hates transparently partisan arguments. There was a case recently where Donald Trump tried to add or the Trump administration tried to add a question to the census. The sole purpose of this question was to prevent immigrant communities or at least discourage immigrant communities from participating in the census and skew the count towards white Republicans. The Trump administration lied about why they put that question on the census. And John Roberts said, you can't lie. You know, like at the very least, you're not allowed to just make stuff up. And there were four dissenters in that case. So if Barrett or some other Trump nominee is confirmed, there will probably be five people for the proposition that the president of the United States is allowed to lie and get away with it.

Sean Rameswaram: It's not just there's a lot of individual cases like, you know, Obamacare is in jeopardy. You're going to see broader religious exemptions. It's that there's probably going to be five votes that'll just take transparently partisan, sloppy, poorly crafted arguments and say, that's fine.

Ian Millhiser: Democrats don't have the votes, but there is maybe one thing they can do. More with Ian after a break.

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Sean Rameswaram: Ian, it seems to me like Republicans are maybe just a little bit better at playing this game. They managed to, you know, never even take a vote on Merrick Garland, a moderate that President Obama chose. And here they are after the death of Ruth Bader Ginsburg, a liberal one could say. They are not even wasting an hour or two to get on with this fight to replace her. Do Democrats have any leverage? Do they have any play here?

Ian Millhiser: Well, first, I want to push back a bit against the premise of your question. Great. Which is that the problem isn't that Democrats are bad at this. The problem is that the Constitution is rigged against democracy. And I mean, I think it's important to understand, like, we have a president who wasn't elected. He lost the popular vote by nearly three million votes. When Merrick Garland was nominated, the Democratic minority represented tens of millions more people than the Republican majority. It's because of malapportionment that Republicans control the majority. And now the Democratic minority represents about 15 million more people than the Republican majority. So if we lived in a proper democracy, you know, if the results of our election reflected the preferences of the American people. A more representative democracy. Exactly. We would have a probably a six to three liberal court right now. Hillary Clinton would be president and we would be talking about which liberal judge Hillary Clinton was about to nominate to the Supreme Court if we lived in a proper democracy. But we live in a less representative democracy. So in this constitutional republic we got, do Democrats have a play or is this just a done deal?

Sean Rameswaram: So they do have a play. It's a play that probably only works if they win in a landslide. If they win in this election in a landslide. That's correct. So the Constitution says that there has to be a Supreme Court. It doesn't set the number of seats on that Supreme Court. There may be 14 or 13 or 12. The number of seats has been as few as five in the past, and it's been as many as 10 in the past. And there may be only nine. So if Trump's nominee is confirmed, Democrats, if they win a sufficiently large majority, they'd have to nuke the filibuster to do it. But they could pass a law immediately saying that the number of seats on the Supreme Court shall be 13 or 15 or whatever number they want. And then President Biden could immediately nominate people to fill those seats. And then the Senate could confirm them.

Ian Millhiser: Wait a second. Ian, are you talking about court packing?

Sean Rameswaram: I am talking about court packing. I came by a process of elimination to the conclusion that short of amendments, the only method which was clearly constitutional was to infuse new blood into all our courts.

Ian Millhiser: Didn't FDR try this once? And the historical perspective on this is like, FDR was so crazy he tried to pack the court. There is nothing novel or radical about this idea. It is a risky play.

Sean Rameswaram: So FDR tried court packing. He proposed it in 1937 after the Supreme Court had been striking down a lot of New Deal proposals. And it did not go well for him. Like all lawyers, like all Americans, I regret the necessity of this controversy. A lot of people view this, a lot of historians view this as the moment that shattered his coalition. Now, that said, I think there's a lot of things about this moment that are different. So one thing that different is that there was a very reactionary Supreme Court in the 1930s that FDR had to deal with but every justice got their fair and square There was no allegation that the Republican Party had made up some rule to block a Democratic nominee and then had strategically abandoned that rule when it no longer benefited them. Everyone on the court in the 1930s had gotten there through a fair a normal process. The other difference is that FDR's coalition already had a lot of hidden fractures in it. There were Southern Democrats who were much more committed to segregation than they were to the New Deal. There were actually Northern and especially Northwestern Republicans who supported the New Deal programs but didn't have any particular love of FDR and were afraid of him consolidating too much power. So it was easier for a hammer to shatter that coalition, whereas now I think Democrats are more united. And if they had a sufficient majority to push through a court packing bill, I think that a lot of them are likely to hold together here.

Sean Rameswaram: Court packing, though, it's come to this. Yeah, I mean, this is something that was completely off the table a week ago. But I think the thing to understand here is that Democrats are in mourning. They are sad. They are pissed. But I think it's also important to remember who Ruth Bader Ginsburg is. If you had asked me six months ago, who are the two most revered people amongst elite Democrats in Washington? I would have said John Lewis. Civil rights leader John Lewis often called the conscience of the Congress by his colleagues, leaves behind a lifelong legacy of protecting human rights and securing civil liberties. And Ruth Bader Ginsburg. You know, these are two people who did more than anyone who was alive or at least who was alive six months ago to achieve the promise of equality in this nation. And the trauma of having this president get to replace Ruth Bader Ginsburg under these circumstances where we're coming up on an election and the Merrick Garland thing happened just four years ago. I think that might be enough to get Democrats to say enough is enough. We're going to play hardball. We're going to play as hard as we need to play to win. And so, you know, I don't know if every Democrat will sign on to court packing, but if Democrats win a big, big victory, I think that there could be a majority in both houses for it.

Sean Rameswaram: Well, Chuck Schumer is the Senate minority leader. What does he think about it?

Ian Millhiser: You know, I haven't seen an explicit statement from Chuck Schumer beyond that all options are on the table. Most Democrats are trying very, very hard to say that they're not taking anything off the table, but they're not committing to any specific play forward. The only Senate Democrat that I've seen explicitly come out for court packing is Senator Ed Markey from Massachusetts. So not looking terribly likely. I mean, it depends. You know, the answer to this is that I think everything depends on the size of the Democratic majority. If there's a 54, 55, 56 senator majority, then I think Democrats could very well have the votes to do this. If there's a 51 seat majority, I think it's very unlikely.

Sean Rameswaram: Is it worth asking, you know, what Justice Ruth Bader Ginsburg would have wanted here? I know we talked about on our previous show that her granddaughter said that she would have liked that, you know, the next president appoint her replacement. But what would she have thought of something like court packing?

Ian Millhiser: She has in the past spoken out against it. I think that was a bad idea when President Franklin Delano Roosevelt tried to pack the court. I don't think it is an ideal outcome if the court is packed. I think it diminishes the legitimacy of the court. I think that Republicans are likely to retaliate with more court packing if they get the chance. And it just winds up destroying the Supreme Court's ability to have any kind of moral force in this country.

Sean Rameswaram: The primary benefit of court packing may come from the threat if democrats can credibly sell republicans on the idea that yes we will pack the court if you fill this vacancy with a trump appointee then i think it's more likely that you get four republican senators to say you know what like we've already got a five justice majority and that's pretty good do we really want to risk losing that.

Ian Millhiser: All right. I guess we'll have to wait and see.

Sean Rameswaram: Thank you, Ian. Appreciate it.

Ian Millhiser: Thank you.

Sean Rameswaram: Ian Millhiser has been writing a lot about what comes next for the Supreme Court. You can find his work at Vox.com. I'm Sean Rameswaram for him. It's Today Explained.

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