Republicans may live to regret backing Trump’s Supreme Court power play

There is a good reason why Donald Trump treats politics as though it’s easy. He has yet to be defeated in any meaningful way. It appears to leave him psychologically incapable of understanding defeat, which means that politics is still, for him, all about “The Big Win”. He doesn’t care about any strategy for next year or any route back into power should the Republicans lose in November. Today’s victory is the only thing that matters. And this is why the passing of Supreme Court Justice Ruth Bader Ginsberg now leaves Senate Republicans facing a dilemma. Do they give their president the easy win he so clearly desires, or should they do what’s best for the Republican Party? The two outcomes are so markedly different…

Take, for example, the names already circulating as potential nominees. In the old political reality, Republicans would either pick a nominee that wouldn’t leave Democrats frothing over their morning yoghurt, or they would delay the vote. They would acknowledge their strategic weakness (we’ll come to that shortly) and think a few moves ahead. The problem, however, is that Trump insists that they shoot for the moon. Ultra-conservative Amy Coney Barrett remains the front runner (“I’m saving her for Ginsberg”, Trump is reported to have said of her), but he could instead pick a name that solves his immediate electoral peril. 

This is why the odds for Barbara Lagoa look more attractive by the day. Whether she’s the right choice seems to matter less than she fits into the crude political calculation that she’s from Florida (a key state in the coming election) and being a Latino woman would also appeal to two important demographics. This is the kind of crude gamesmanship that should rightly leave Republicans worried. 

Then there’s the hypocrisy…

All week, media outlets that aren’t Fox News have been reminding Americans that that Republicans had a difficult attitude to SCOTUS appointments made in an election year. Merrick Garland was left hanging for 293 days during the final year of the Obama administration. Back then, high profile Republicans swore that it was not a partisan issue. Filling the vacancy left by Antonin Scalia’s death should be a matter for the American public, they said. Some even promised that they would argue the same if it was the final year of a Trump administration. 

Except now, of course, they don’t. Lindsey Graham accuses Democrats of trying to block the appointment of Brett Kavanaugh and that is enough, he says, to allow him to change his mind. Others have followed his lead. Though there are notable exceptions in Susan Collins (facing a tough re-election battle in Maine) and Lisa Murkowski (coolly independent as befitting the senator from Alaska), even Mitt Romney has fallen in line with the caravan. With most Republicans thinking of their careers after Trump (nobody wants to look disloyal), Trump’s third supreme court appointment now looks certain.

The hypocrisy might not sit well with voters but politicians breaking their word isn’t exactly going to rock many on their heels. What should make Republicans wary, however, is how this confirmation will now expose the glaring injustice behind America’s electoral system. Is the dream of what Romney calls “a court which reflects a set of right points of view” really worth breaking the system to the point that a Democratic administration would feel compelled to fix it?

American democracy is, after all, something of a compromise, for the moment largely on behalf of the Democrats who enter into any campaign knowing that there’s a systemic bias that makes it harder for them to win. Democrats have swallowed a few bitter pills in recent years to ensure that American democracy is seen to prevail. The Senate, in particular, is hugely stacked against them. The 40 million voters in California are grossly under-represented, whilst the five hundred thousand voters in Wyoming have too much influence. Across the board, such imbalances wipe out the Democrat’s numerical strength and ensure that even when America is Democratic in terms of the popular vote, it leans Republican in the all-important electoral college. 

The result is a nation where, for four years, a minority party has led the country in ways that run counter to how the majority voted. The Trump administration treats this as a virtue, effectively “trolling” their opponents and the media. It has become the predominant mood of politics and led many Democrats to speculate that now might be time to address the electoral system. 

This is why confirming a Supreme Court justice within eight weeks of an election is a gamble for Republicans. It certainly doesn’t increase their odds in November and looks less like a display of strength than the last desperate act of a party that fears for its future. Such an appointment would send America down a conservative route that, in theory, could take decades to reverse. After all, an appointment to the Supreme Court is far more significant than electing a president. The latter serves 4 or 8 (or if Donald Trump gets his wish 16) years. A justice is there for life and, this time, the President is not replacing a conservative appointee with another conservative. He aims to replace the iconic liberal Ginsberg with a conservative who could overturn Roe vs Wade, the landmark ruling that ensures women’s reproductive rights. It’s a play to the base that overlooks that, in 2017, 36% of Republicans said they were pro-choice. 

In sum: there is no more certain way to inflame Democrats, swell their donations, increase their turnout, and then empower them in a subsequent administration. And all for might be a negligible gain.

Although Joe Biden is ever the moderate and has indicated he doesn’t approve of “packing the court” with liberal justices should he win in November, it’s also hard to imagine such moderation holding if Trump continues to pursue his present course. There’s no constitutional mandate that there must be nine supreme court justices. Trump could now stack it 6-3 in his favour, but a President Biden could decide to expand it to 11 (though that still doesn’t ensure a liberal win) or 13, shifting the balance to 6-7. Some constitutional scholars have argued that 19, 21, or even 27 justices make more sense, not least in the amount of granularity that would provide. 

Verdicts that currently end with 5-4 decisions rarely feel settled where more justices would give a better sense of where the majority opinion sits. It also dilutes the significance of any single justice, meaning that we wouldn’t see a repeat of the shameful burden that was placed upon Ruth Bader Ginsberg before her death, unable to retire so long as the sitting president was a Republican. 

Yet, for Trump, the gamble might be worth it. A more favourable Supreme Court could yet help him should the election become mired in controversy towards the end of the year, but, again, that would only be a short-term advantage, and given recent surprise decisions by Chief Justice Roberts and Justice Gorsuch, it’s not even certain that conservatives would confirm Trump’s victory should he contest the election. 

Rather, playing hard and fast with rules and precedents itself sets a bad precedent, and Democrats could feel emboldened to do the same. The most pressing change they could attempt would be to the electoral college, which could be altered in a variety of ways (proportionally allocating electoral college votes rather than the current system of “winner takes all”) to rebalance future elections. Republicans would cry foul ball but, by then, their reputation for fair play would be shot. Do they really want to set that example? It looks likely that they do. Next time, though, it might not be them breaking the rules.