The Republican-majority Senate tonight confirmed Amy Coney Barrett as a Supreme Court justice. This, after the same Republican-majority Senate claimed, four years ago – in the very previous presidential election, something recent enough to still feel like part of current events, not history – that when a seat on the Court opens up in an election year, the seat should be filled by the winner of the election. That’s what they said. What they meant, and what Barrett’s nomination and confirmation this year show, is that what Republicans believe is that whichever party holds power can and should do whatever it wants within the Constitution. Democrats have taken note.
Why block Merrick Garland’s nomination in 2016? The why there was obvious: it gave Republicans a chance to fill the seat themselves and maintain a majority. And it worked. But why fill this seat now, rushed before the election? Why not wait? Even if Biden wins and were to fill Ginsburg’s seat, Republicans would still have held a 5-4 majority. The only explanation that makes sense is that Mitch McConnell thinks Trump is going to lose and he doesn’t much care about that.
In terms of the actual election next week, ramming this nomination through now clearly hurts Trump, not helps him. Four years ago that Supreme Court vacancy helped Trump tremendously – some number of conservative-leaning voters who would prefer a conservative Supreme Court but didn’t like Trump personally voted for him anyway on the basis of that open seat on the Court. Yes yes, some voters love Trump. But nowhere near enough for him to have won in 2016 or to win in 2020. He needs voters who dislike him, to some degree, to vote for him anyway (which is true for all politicians) and an open Supreme Court seat was just such a reason in 2016.
And it could have been again, this year, after Ruth Bader Ginsburg died. All it would have taken is for Trump himself to say the winner of the election should make the pick. He’s been desperate for months to change the subject of the election to something other than his bungling of the COVID-19 epidemic and everything else that made him historically unpopular before the pandemic. An open Supreme Court seat to be filled by the winner would have been just what he was looking for. It also would have made him appear magnanimous – something deeply appealing to swing voters.
It’s almost comical how badly Trump misplayed this opening at Mitch McConnell’s behest. It serves McConnell’s interests to fill the seat while they can, before Trump seems likely to lose the election. It doesn’t serve Trump’s interests at all. There are voters who love Trump all the more for filling this seat now before the election, but they’re the sort of voters who were going to vote for Trump no matter what. But there are almost certainly an electorally significant number of conservative-leaning voters who care about the makeup of the Supreme Court who might have held their noses and voted (again) for Trump even though they dislike him – maybe really dislike him – just on this issue alone, who will now feel free to vote for Joe Biden because conservatives on the Court now hold a 6-3 majority. If a conservative Supreme Court majority is your top issue as a voter, you’ve already got it. You’re free to move on to your next issues, like, say, having someone you respect in the White House. Or someone who believes in science.
Dave Winer wrote the following a month ago, and I haven’t seen anything that puts McConnell’s place in this better:
McConnell is 78, an old man, and he’s got maybe one more term in
him, maybe not even that. He’s playing a game for the sake of the
game, the same way a compulsive crossword puzzler has to finish
the Sunday NYT puzzle.
He set out to do one thing in his life, turn the court Republican.
Look at it this way. The Republicans had two ways to play this vacancy: ram a nominee through before the election just because they can, or use the vacancy as an issue to help win the election.
McConnell was guaranteed of his life’s goal if they rammed it through pre-election. If they’d waited, that turned into a maybe. It served McConnell’s interests to take the sure thing now, even if it hurt Trump personally and Republicans in general in the upcoming election.
Trump had nothing to gain by ramming it through now. He surely thinks that Republican voters will “thank him” for it, because he thinks everything is all about him. The open seat in 2016 made the presidential election about two things: the White House and a Supreme Court seat. Barrett having filled the open seat tonight means next week’s election is only about the White House, and a referendum only about Trump. Trump, who is infamously transactional, got transacted by McConnell and he doesn’t even know it.
There’s also the angle that Trump somehow thinks having Barrett on the Court might hand him a contested election win. It strikes me that the odds that Trump needs every last swing voter who cares about a conservative SCOTUS as a top issue are high; the odds of a 2000-like situation where the Electoral College comes down to one state and that one state’s vote is so preposterously close it gets thrown to the courts is low. Trump beat Clinton in 2016 by just 70,000 total votes across Pennsylvania, Michigan, and Wisconsin, and that wasn’t disputed. And even if something like 2000 happens again and Amy Coney Barrett winds up casting the decisive vote in a 5-4 decision that hands the election to Trump, that would only happen if the election were so close that Trump almost certainly would have won outright, without throwing it to the courts, if he had held the open Court seat as an election issue. Trump doesn’t understand how any of this actually works, that it’s not like pro wrestling where he can just say it’s a contested result and let the SCOTUS decide in dramatic fashion. There are very limited circumstances where the Court can step into an election.
If you’re a swing voter whose top priorities are (1) a conservative SCOTUS and (2) the personality of the candidates, Trump just lost your vote if you think he’s an ass. Mitch McConnell, on the other hand, already won and has cashed in his chips.*
* If the Republicans lose the Senate – as appears likely – I bet McConnell retires. He’s already accomplished his life’s work, why play out the clock as minority leader in the Senate?