Ridiculous, But Still Seditious

The attorneys general of Texas and 17 other states run by Republicans are asking the Supreme Court to change the winner of the presidential election in four states Joe Biden won: Georgia, Michigan, Pennsylvania and Wisconsin. If the Supreme Court agreed, the Democratic electors in those four states wouldn’t get to vote for Biden. Instead, the Republican-led legislatures in George, Michigan, Pennsylvania and Wisconsin would appoint electors who would then presumably vote for Biden’s opponent. Since those four states have 62 electoral votes between them, the Orange Menace would receive 294 electoral votes, enough for him to stay in office another four years. Voila!

The president and his cult have already lost more than 50 lawsuits before both Democratic and Republican judges aimed at changing the results of the election. But, according to the president, this latest lawsuit is “the big one”. It’s always been his hope that the Supreme Court, now overflowing with Republicans (three chosen by him), would come to his rescue if the election didn’t go his way.

In lawyer-speak, there is “no factual or legal basis” for the Supreme Court to intervene in the election. Giving Texas what it’s asking for would amount to a judicial coup d’état. Pennsylvania’s response to the lawsuit says “the Court should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated”. It’s not a close call.

In fact, it’s unlikely that the attorneys general of Texas and the other states think they can win. The president may be an ignoramus who lives in a world of his own imagination (he is), so he might think there’s hope. No doubt millions of his supporters believe the Supreme Court will step in and save their hero. But the attorneys general all made it through law school. They’re simply using the Supreme Court to publicly demonstrate they’ll do anything, no matter how preposterous, to back this president and Keep America Great Again.

As an indication of the seriousness of the Texas lawsuit, look at the statistical “evidence” the lawsuit presents (pages 6 and 7 here). They got one of the president’s supporters, who is roughly 80 years old and claims to have a Ph.D.in economics, to state that there was less than a 1 in 1 quadrillion chance (that’s less than 1 in 1,000,000,000,000,000) that Biden won even one of the four states, given (1) how far ahead Txxxx was at 3 a.m. on the night of the election and (2) how much better Biden did than Hillary Clinton four years ago. These calculations were based on two absurd assumptions:

(1) Votes counted before 3 a.m. on the night of the election and those counted after 3 a.m. (including on subsequent days) were from identical samples of voters. But, as expected, Democrats tended to vote by mail, which meant their ballots were counted more slowly; and, of course, some jurisdictions count votes and report results more slowly than others. The assumption that “votes are evenly and randomly distributed among geographic regions, demographics, and voting method, so that any two large groups of voters should generate similar results [has been] described as “ludicrous” and “statistical incompetence” by several academics. Kenneth Mayer, professor of political science at the University of Wisconsin, said “This is going to be used in undergraduate statistics classes as a canonical example of how not to do statistics” [Wikipedia].

(2) Since they were both Democrats running for president, Joe Biden and Hillary Clinton should have received roughly the same percentage of votes in the four states. Is it necessary to mention that Biden and Clinton were different candidates running in elections four years apart, and that Clinton ran against a political newcomer, while Biden ran against an incumbent with a disastrous four-year record? Or that the differences between Biden’s percentages and Clinton’s were relatively small — the only significant difference being that he won and she lost?

So, the Supreme Court will either refuse to consider Texas’s lawsuit or dismiss it. This doesn’t mean it’s unimportant. Millions of Republican voters, more than a few of whom are either violent or crazy, are counting on the Supreme Court. How will they react when they’re disappointed? (Gosh, I hope they refuse to vote in the Senate election in Georgia — that will show the politicians who’s boss!)

Secondly, hundreds of Republican politicians from around the country have signed on to this lawsuit, all repeating the same stupid arguments in favor of ignoring the votes of millions of their fellow citizens. As Paul Krugman wrote today:

The [Republican Party] has no commitment to democracy, and hasn’t for years. Given the chance to turn America into Hungary, the GOP wouldn’t hesitate for a second.

Some Republicans might hesitate, but it’s clear that one of our major political parties no longer plays by the rules. Their goal is power, and we have no idea how far they’ll go to get it or keep it. 

Note: Now that all the states have certified their election results, the Electoral College will meet on Monday and declare Joe Biden the winner. Thirty-seven days later, he’ll be sworn in. If you’d like to look at the legal documents filed for and against Texas’s suit, they’re available on the Supreme Court site.

Democrats Have To Expand the Supreme Court

From Paul Waldman of The Washington Post:

Keep this image in your mind: Justice Amy Coney Barrett, standing with President Txxxx on a balcony at the White House, smiling in satisfaction as the crowd below them whoops and hollers with joy after Barrett was sworn in to the Supreme Court.

Barrett no longer needs to pretend that she’s anything other than what she is: a far-right judge, installed on the Supreme Court by a president who got fewer votes than his opponent and confirmed by a Republican majority that represents fewer voters than their Democratic colleagues, whose job it will be to do everything in her power to maintain minority GOP rule while carrying out a conservative judicial revolution.

That picture of Barrett and Txxxx reveling in their mutual triumph was so vivid that the Txxxx campaign literally turned it into an ad for the president’s reelection. A different person [Note: he means someone more like a judge] might have said, “Mr. President, it wouldn’t be appropriate for me to participate in such a nakedly political event.” But Barrett wasn’t concerned. She didn’t shout “MAGA 2020!” but she might as well have.

So now it is up to Democrats to recalibrate their understanding of just what is and isn’t appropriate — starting with expanding the Supreme Court as soon as they have the opportunity, which could come in January 2021.

This may be the single most important thing they have to remember: Their actions must not be determined by whether Republicans will complain.

Unfortunately, that’s how Democrats usually see things. If Republicans raise a stink — or even if they just assume Republicans might raise a stink — then Democrats shrink back in fear, lest the action they’re contemplating be considered inappropriate.

But by now they should understand that Republicans will say that everything they do, no matter how by-the-book it might be, is an egregious violation of propriety and good conduct. That’s how Republicans operate, precisely because they know Democrats are deeply concerned with whether processes are conducted in fair and reasonable ways.

But Democrats should listen to Sen. Mitch McConnell. Here’s part of what the Senate Majority Leader said Monday during the floor debate on Barrett’s nomination:

Our colleagues cannot point to a single Senate rule that’s been broken. They made one false claim about committee procedure which the parliamentarian dismissed.

The process comports entirely with the Constitution.

We don’t have any doubt, do we, that if the shoe was on the other foot, they would be confirming this nominee. And have no doubt if the shoe was on the other foot in 2016, they would have done the same thing. Why? Because they had the elections that made those decisions possible. The reason we were able to make the decision we did in 2016 is because we had become the majority in 2014.

The reason we were able to do what we did in 2016, 2018, and 2020 is because we had the majority. No rules were broken whatsoever.

To clarify, the dates McConnell refers to are when he and Republicans refused to hear President Barack Obama’s nomination of Merrick Garland (2016), changing the size of the court from nine to eight justices and then back again; the nomination of Brett M. Kavanaugh (2018); and Barrett’s nomination (2020). [Note: There is no way Democrats would have refused a vote on a Republican nominee in 2016, but that’s the kind of bullshit McConnell says when he wants to sound reasonable.]

“The reason we were able to do what we did … is because we had the majority.” It’s the rule McConnell has lived by: Whatever Republicans can do, they will do, if it gives them an advantage.

And he’s right that neither the Constitution nor the rules of the Senate were violated in any of those cases. Nor would it violate the Constitution for Democrats to say that just as Republicans changed the size of the court in 2016 (and as happened many times in the country’s early years), Democrats will now change the size of the court again.

They should do this not only to restore balance after the extraordinary actions McConnell and Republicans undertook, but also as part of a desperately needed effort to stop America’s slide into minority rule and restore something resembling democratic responsiveness to the entire system.

That goes along with eliminating the filibuster so the majority of senators can pass the agenda voters elected them to enact; granting statehood to the District of Columbia and Puerto Rico so the millions of Americans who live in those places can have representation in Congress; and passing a new Voting Rights Act that prevents GOP efforts to disenfranchise voters.

Whenever Democrats waver in their willingness to do what needs to be done to safeguard democracy, they should remember that McConnell is almost daring them to do it, precisely because he thinks they don’t have the guts.

“A lot of what we’ve done over the last four years will be undone, sooner or later, by the next election,” he said Sunday about Barrett’s nomination. “But they won’t be able to do much about this for a long time to come.”

But they can, and they should, no matter how much Republicans whine about it. If voters give them the White House and the Senate, they’ll have the legal right and the moral obligation to do so. Without it we won’t have a real democracy.

Unquote.

I still think adding three justices to balance the Court between Republicans and Democrats is a good idea. If President Biden creates a commission to study the matter, I’ll send them a postcard.

Five days.

Making the Supreme Court More (Small “d”) Democratic

The fundamental objection to the Supreme Court’s powers . . . is that no one concerned to establish a democratic state would bestow on nine judges, appointed for life at the whim of the pre­sident, powers to determine society’s governing norms.

That’s from an Oxford fellow’s London Review of Books article about America’s Supreme Court, which now includes six Republicans (five of whom are Catholics) and three Democrats (one of whom is). The article continues:

Some progressives have begun to argue that the court’s problems can be fixed only if its powers are reduced. One possibility would be to introduce term limits for judges. This, though, wouldn’t limit their powers.

But the Constitution says federal judges “shall hold their offices during good behaviour”. That seems to mean term limits would require a constitutional amendment, which would be unlikely to pass when the Court is so unbalanced. Republicans wouldn’t agree to give up their big advantage.

Another suggestion is to change the voting rules on the court. Continental legal systems often require unanimity among the judges in all decisions. In the US, if the justices were unable to reach unanimous agreement, the lower court’s decision would be upheld. This already happens when an equal number of justices are in favour of and opposed to a ruling: the court can divide equally when . . . there are only eight members on the court, or when a justice recuses him or herself. A unanimity rule would not deprive the court of all its powers: between 1946 and 2009, 41 per cent of decisions were unanimous.

There is nothing in the Constitution that says how many votes are required for the Supreme Court to make a decision, so requiring a unanimous vote would merely require a new law, not a constitutional amendment. A Democratic president and Democratic Congress could easily make that happen, assuming a Democratic Senate got rid of the filibuster.

But it would mean that a single ideologue could exercise an outsized effect on individual decisions.

Some scholars propose a super-majority requirement, permitting one or two dissenters. That deprives the lone ideologue of ransom power, but it is also a conservative measure, entrenching the court’s existing decisions; the more controversial may never be overturned.

The proposal often mentioned is to enlarge the Court (so-called “court packing”). Congress and the President could add three Democrats, for example, creating a 12-member Court split evenly between the parties.

. . . When Franklin Roosevelt sought to pass progressive legislation during the Great Depression, the Supreme Court stymied his efforts by striking down key parts of the New Deal. In response, he resolved to appoint as many as six new justices. Roosevelt, for all his skills, was unable to get the measure through the Senate (though the court was chastened by his efforts). Pete Buttigieg revived the idea in his run for president, proposing an expansion from nine to 15 judges. There is no principled reason to settle on nine as the appropriate number of justices; the court initially had six, once had ten, and other Supreme Courts around the world often have more.

The author of the Guardian article thinks adding justices would be inadequate:

But ‘packing’ the court, even if it were politically feasible, still doesn’t address the problem of how to limit its powers. That said, the political confrontation it would generate might cause the justices to reconsider their attitudes to those powers. That would be no bad thing.

Chief Justice Roberts is apparently concerned that the Court’s right-wing activism may sometimes go too far. But depending on him or other justices to refrain from using all their power to carry out the Republican agenda is wishful thinking. Rather than waiting for the Republican majority to restrain itself, Congress should limit the Court’s powers. A University of Chicago law professor explained how last month in The Washington Post:

A new Democratic Congress could, for example, impose by ordinary statute a limit on the Supreme Court’s authority to declare federal legislation unconstitutional, permitting it to do so only by supermajority (say, 7-2) rather than the usual 5-4. In so doing, Congress would be using the same power it does to dictate how many justices constitute a quorum. This reform would implement, via voting rule, the sort of “clear error” approach to judicial review imagined by Harvard professor James Bradley Thayer in the late 1800s. Such a rule would permit a judicial veto in cases of uncontroversial constitutional violation (for example, an effort to reintroduce de jure segregation of schools or criminalizing the speech of political opponents) but otherwise require the court to stay its hand.

Alternatively, Congress and the president might (again by ordinary statute) “strip” the court of jurisdiction over constitutional challenges to specific legislation — the Green New Deal, for example, or HR1, the sweeping set of reforms first approved by the Democratic House in 2019 that includes establishing automatic voter registration, making Election Day a national holiday and ending partisan gerrymandering. (It could also strip its jurisdiction over whole areas of law, such as climate legislation). Here, Congress would be making use of its Article III power to decide what kinds of cases the Supreme Court may hear on appeal — the court has constitutionally mandated jurisdiction only over disputes between states and the like — as well as its authority to decide whether lower federal courts exist at all, and so what cases they are permitted to hear.

. . . The exact scope of Congress’s ability to strip jurisdiction remains controversial, and a recalcitrant court might resist. This is a situation in which additional sympathetic justices recently added to the court might be helpful; court packing, in other words, might pave the way for additional reforms. Whatever stance the court takes, the limits Congress may impose is a question that careful attention to the Constitution is unlikely to answer; rather, as with most of these disputes, the resolution would ultimately be political, as opposed to legal, with the political and judicial branches left to hash out a new status quo. As former dean of Stanford Law School Larry Kramer has observed: “The Constitution leaves room for countless political responses to an overreaching court” — including judicial impeachment, slashing the court’s budget, giving the justices onerous responsibilities or simply ignoring the court, as did Lincoln, after the Dred Scott case.

Conservatives made similar efforts at limiting the court’s authority in the 1970s and 1980s (backed by legal arguments from a young [John] Roberts, working as an attorney at the Department of Justice) — repeatedly introducing legislation to limit federal courts’ ability to adjudicate contentious cultural issues such as abortion and school prayer — and have made similar efforts since. Those efforts failed, in part because of a lack of support in the Senate, but one can imagine that a Democratic-controlled Senate might be exceptionally motivated to protect its potential legislative accomplishments from a hostile judiciary.

Given Republican rhetoric about unduly powerful courts, there’s a chance that at least some conservatives may embrace the cause of judicial disarmament (especially if liberal court-packing is the alternative). For both parties, of course, going down such a path would increase the stakes for who controls the political branches. Both sides would have to ratchet down the expectation that the Supreme Court would annul popular laws that they find distasteful — whether that means (on the right) a statute phasing out fossil fuel production or (on the left) a federal ban on affirmative action in higher education. In a democracy, however, that is exactly how things should be.

Unquote.

Seven days.

On Fixing the Supreme Court

The Supreme Court being in the (bad) news, someone posted a link to a forthcoming article in the California Law Review. The article, “Democratizing the Supreme Court”, is 71 pages long. Below are 2 1/2 pages of excerpts. I think they’re interesting. 

Before getting to that, however, I want to point out that the effort to defang the Electoral College is further along than most people realize. This is good news:

The National Popular Vote Interstate Compact will guarantee the Presidency to the candidate who receives the most popular votes across all 50 states and the District of Columbia. The Compact ensures that every vote, in every state, will matter in every presidential election. The Compact is a state-based approach that preserves the Electoral College, state control of elections, and the power of the states to control how the President is elected.

The National Popular Vote bill has been enacted by 16 jurisdictions possessing 196 electoral votes, including 4 small states (DE, HI, RI, VT), 8 medium-sized states (CO, CT, MD, MA, NJ, NM, OR, WA), 3 big states (CA, IL, NY), and the District of Columbia. The bill will take effect when enacted by states with 74 more electoral votes.  The bill has passed at least one chamber in 9 additional states with 88 more electoral votes (AR, AZ, ME, MI, MN, NC, NV, OK, VA).

Ok, back to the Supreme Court:

Supreme Court reform is on the progressive agenda, but the debate about how to conceptualize and therefore to pursue it has barely begun. . . . Though only in early stages, our era’s discussion now risks brevity and error. Historical memories have favored “court-packing” or personnel expansion of the institution as practically the only imaginable reform. . . .

The basic purpose of this article is to counteract this risk. It reconsiders the criteria of reform, not with the assumption that the goal is re-legitimating the Supreme Court, but with the necessity of progressive transformation of the country in mind. . . .

This article [compares and contrasts] the widest range of imaginable statutory reforms under our current constitutional regime. These include balancing the Supreme Court between parties, turning to expert or merit selection, using lotteries to compose decision-making panels from larger pools, passing jurisdiction stripping statutes (potentially ones introducing alternative executive branch adjudication), institutionalizing higher voting thresholds for judicial decisions, or opening the possibility of their legislative override . . .

The last discussion of Supreme Court reform, climaxing in the emergency of the 1930s, is a cautionary tale more than an inspiring precedent. Formally, Franklin Roosevelt failed in court reform, even while leaving a memory of his own solution—court packing—as if it were the most viable choice now. . . . The lesson of the last reform era for our own is that we must democratize the Supreme Court . . .

The consequence for the discussion of Supreme Court alternatives is straightforward. It must begin with how to diminish the institution’s power in favor of popular majorities. Asking “how to save the Supreme Court” is asking the wrong question. For saving it is not a desirable goal; getting it out of the way of progressive reform is. The New Deal court reform had the chance to counteract the assumption that judicial power is hardwired out of necessity or in principle into American politics, only to see it canonized instead. The entire point of Supreme Court reform ought to be to avoid repeating that mistake . . .

The Supreme Court is not a separate problem from the crisis and deadlock of the American political system, in view of the fact of a rising [liberal] majority abetted by demographic and generational change and more and more open to national renovation. It is part of crisis and deadlock, to be reevaluated rather than restored in its basic functions if progressive reform is to occur. . . .

Progressive activists and scholars have proposed a host of reforms in recent years, from court packing to jurisdiction stripping to term limits. [These] various proposals can . . . be sorted into one of two types. . . . The first type, which we call “personnel” reforms, propose to alter the Supreme Court’s partisan or ideological composition. . . . [They] try to improve our situation by adjusting the Supreme Court’s membership . . . [Since they only deal with] who sits on the bench, personnel reforms take for granted that the Supreme Court wields tremendous policymaking authority. The goal of such reforms is thus, for progressives, to wrest that authority away from conservatives.

By contrast, the second type of proposal, what we call “disempowering” reforms, take aim at what the Supreme Court is permitted to do. Reforms like jurisdiction stripping or supermajority voting rules for judicial review, for example, limit the Supreme Court’s ability to make policy to varying degrees. In so doing, disempowering reforms effectively reassign power away from the judiciary and to the political branches. Unlike their membership analogues, these ‘small-d’ democratic reforms have no obvious ideological valence . . . Partisan advantage would be tied directly—and evenly—to electoral outcomes. Such reforms thus amount to mutual judicial disarmament, lowering the stakes of judicial appointments and increasing (or at least evening) the stakes of congressional and presidential elections. . . .

Many of the personnel reforms . . . try to restore or preserve the Supreme Court’s perceived role as an apolitical decision maker. . . . Immediately, however, this shift from non-ideological to ideological moderation or centrism should set off alarms. Insofar as the Court is supposed to be a neutral arbiter of the law, reforms that conduce to ideological moderation are fundamentally of the wrong type. The neutral arbiter ideal is essentially what Chief Justice Roberts invoked with his in/famous judges as “umpires” metaphor. That image of judging, of course, assumes a sharp distinction between politics and law. . . . [But] it makes no sense to insulate judging from politics by imposing moderate or centrist politics as opposed to politics that are far left or far right. . . .

Few if any would argue that the Supreme Court’s legal analysis goes uninfluenced by willfulness or motivated reasoning. Especially in politically significant cases, the consensus among scholars and other legal observers is that the Supreme Court’s decisions are, to the contrary, driven substantially by ideological commitment. . . . To impose a moderate or centrist ideology is not to remove ideology from the equation. Just as those on the far left or the far right are susceptible to motivated reasoning or willfulness, those in the political center have substantive preferences that can lead them astray if those preferences do not align with the law. Put more simply, it is hard to see how merely changing the Court’s ideology would make the Court less ideologically motivated. . . . [I think the idea is that moderate or centrists are less ideological, so having more of them on the court would reduce the effect of ideology on the Court’s decisions.]

The push for democratic legitimacy starts from the observation that much of the Supreme Court’s work is inherently political. Especially in constitutional cases, many of the claims the Court is asked to evaluate are legally underdetermined or, at a minimum, epistemically opaque. As a result, Supreme Court justices inevitably rely upon policy inclinations in deciding what the Constitution requires or permits. The question for small-d democratic reformers, then, is how to reconcile the ideological nature of these determinations with a commitment to democratic self-rule. For proponents of disempowering reforms, the way to address the apparent tension is to redirect decision-making authority away from the democratically unaccountable judiciary and toward the political branches. . . .

Among personnel reforms, court packing is probably the most uncontroversially legal. . . . The number of seats on the Supreme Court has been set since its inception by statute and Congress has adjusted the size of the Court – from six to seven, to nine, to ten, back to nine – numerous times.This longstanding congressional practice couples with relative constitutional textual silence. While Article III assumes the existence of a Supreme Court and Article I, section 3, that there will be a Chief Justice, nothing else in the text seems to bear on how large or small the Court must be. . . . After court packing, the legality of personnel reforms gets murkier. . . .

Disempowering reforms are also contestable, legally speaking. Jurisdiction stripping is perhaps the most aggressive reform and famously raises numerous constitutional questions—questions that become more difficult the more comprehensive the strip. In particular, the Supreme Court has remarked repeatedly that “serious” concerns “would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim.” Such worries apply to specific constitutional issues, let alone to broad categories of claims.

Despite this controversy, stripping courts of jurisdiction, even over constitutional challenges, has strong textual footing. As numerous scholars have observed, Article III’s grant of authority to Congress to “make … Exceptions” to the Supreme Court’s appellate jurisdiction while at the same time placing the existing of “inferior” federal courts entirely within congressional control suggests that Congress enjoys sweeping authority concerning which cases federal courts are permitted to hear. And as to state courts, both the Supremacy Clause and the Necessary and Proper Clause appear to provide Congress substantial discretion there as well. Taken together, Christopher Sprigman argues that these features indicate the Constitution “gives to Congress the power to choose whether it must answer, in a particular instance, to judges or to voters,” relying in some instances on political rather than judicial checks to enforce constitutional constraints. . . .

Court reform is a debate about both means and ends. The conventional prevailing view is that we should use non-neutral means of reform that correct distortions in membership on the bench in order to achieve the neutral end of an apolitical Supreme Court. In opposition to this view, our argument has favored the neutral means of democratization—which shifts power to whoever wins elections to determine the fate of the country—as the most plausible way to achieve non-neutral ends.

Of course, somebody else than progressives could win those elections, and constitute the political majorities to come. But if right-wing nationalists win, the country is already lost. And if a centrist coalition in either party prevails, they establish the outcome many court reformers hope to achieve through personnel reforms.

But the rightist and centrist outcomes are not the only possibilities. If a progressive coalition wins, it could take advantage of the power reassigned from the Court to allow politics to redeem the country—something that no court, let alone our Supreme Court, will ever do.

I Can’t Think of a Title

February 13, 2016: “The American people should have a voice in the selection of their next Supreme Court Justice,” McConnell said in a statement released after Scalia’s death. “Therefore, this vacancy should not be filled until we have a new president.”

February 23, 2016: “I can now confidently say the view shared by virtually everybody in my conference, is that the nomination should be made by the president the people elect in the election that’s underway right now” McConnell told reporters [although there was no election underway in February] . . . I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president…The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide.” 

May 28, 2019: An attendee at a Chamber of Commerce event in Kentucky asks McConnell, “Should a Supreme Court justice die next year, what will your position be on filling that spot?” “Oh, we’d fill it,” McConnell replied, grinning.

September 18, 2020: “President Txxxx’s nominee will receive a vote on the floor of the United States Senate,” McConnell said in a statement on Friday evening [without even waiting until the next day].

We know how unique the president is and that Senator McConnell’s only motivation is power. Are there four Republican senators who will choose to honor Ruth Bader Ginsburg’s memory, if only for their own selfish reasons? I doubt it.

David Frum, however, a conservative anti-Txxxx commentator, doesn’t think this is a done deal. He suggests that:

(1) Some Republican senators behind in the polls may see this as an opportunity to look independent and win re-election. Others may have a reason (personal honor, a previous strongly-stated position) not to go along with McConnell.

(2) It may be difficult to find a nominee, given how much criticism they’ll receive, especially if they aren’t guaranteed approval in the Senate.

(3) Nominating a replacement before the election will mobilize even more anti-Txxxx voters, so it would be in the president’s interest to wait.

(4) The conservative legal establishment may resist in order to minimize the chance that a Democratic Congress will make much-needed, pro-democracy reforms to the Supreme Court.

Michelle Goldberg of the New York Times discusses some of the same considerations and concludes:

If Republicans force a justice on us, it’s because they believe that standards are for suckers, and people who hold power need not be constrained by any pledge or institutional tradition.

According to Ginsburg’s granddaughter, the justice made a dying wish: “My most fervent wish is that I will not be replaced until a new president is installed.”

It doesn’t matter how exhausted we are, or how difficult the odds. In this hell-spawned year, we can either give up, or give everything we can to stop some of America’s worst men from blotting out the legacy of one of our very best women.