Where the Supreme Court crisis goes next: Pressure points and possibilities

Not long after the shocking news of the passing of Supreme Court Justice Ruth Bader Ginsburg broke, Joe Lockhart, a longtime Democratic operative (and even a one-time landlord to Barack and Michelle Obama) posted some advice on Twitter that went viral: “Let’s make sure Amy McGrath raises $10 million in the next 24 hours.”

The suggestion is so off-base it borders on fraud. Let’s talk about why, and what would be a smarter use of money. 

As always, feel free to forward this email, and if you know somebody who ought to be getting it, they can sign up here.

First, though, a caveat: If giving Mitch McConnell’s opponent $20 makes you feel good, then by all means do it. We spend money to make ourselves feel good all the time, and there’s nothing wrong with that. I bought a $20 box of red wine this week for that purpose. It worked, and I had no illusions I was making the world a better place.

Let’s start with an understanding of where we are. Republicans hold 5 seats on the Court. If they add a sixth ultra-conservative judge, that would mean that Brett Kavanaugh would become the swing vote, an appalling thought. 

Republicans hold 53 seats in the Senate, which is what makes it possible for McConnell to be majority leader. Take away that majority, and he’s just a guy from Louisville who commutes to Washington to object to whatever Democrats are doing. 

There are at least 13 races where Democrats are more likely to take out a Republican senator than Kentucky, where McGrath trails McConnell by double digits despite sitting on a mountain of cash. Among them: Arizona, Maine, Colorado, Montana, North Carolina, Georgia, Georgia (there are two), Alaska, Iowa, South Carolina, Texas, and Kansas. Even Mississippi and West Virginia are more competitive than Kentucky. And Democrats are defending a seat in Michigan. The Pod Save America crew is raising money for every competitive Senate race on the map, and splitting it among them. That’s a much smarter way of doing it. And they don’t have Kentucky on that map. 

McConnell has said he’s plowing ahead with a nominee, but that doesn’t mean he’s going to do it before the election. He can only lose three votes and still approve a nominee (with Vice President Pence breaking the tie). Lisa Murkowski and Susan Collins have more or less said they won’t approve a new nominee before the election. Mitt Romney hasn’t said, but he’s a target. Lindsey Graham, the chair of the Judiciary Committee, previously said he wouldn’t do it, but he can’t be trusted to stick to that. Same with Chuck Grassley. Cory Gardner in Colorado is a wild card. 

The thinking is that McConnell won’t want to face the blowback on Election Day if he does it ahead of that, but the lame duck is a huge risk. Look closely at what he has said: “President Trump’s nominee will receive a vote on the floor of the United States Senate.” That is not a pledge that the vote will come before the election. 

If Democrats do seize the Senate and the White House, Republicans will still control the Senate in November and December. If Mark Kelly wins his special election in Arizona, he’s supposed to be sworn in immediately, but that doesn’t mean he will be. But assuming he is, that takes the GOP majority down to 52. Murkowski’s no vote means it’s down to 51. Romney could take them down to 50, which would mean they’d need both Collins and Gardner to vote yes. In a world where Democrats take the Senate, both of them would have lost re-election. 

The most likely way to get Collins and Gardner to say no would be the credible threat from Democrats to grow the size of the Supreme Court to 13 justices, which would make 7 liberals and 6 conservatives. Since they’re reforming the federal courts, they could also add scores of lower level judges, undoing McConnell’s signature achievement of taking over the federal bench with right-wing zealots. 

So, in short, if Republicans don’t ram through a nominee, they will continue to control the Supreme Court and the lower courts. If they do ram one through, and Democrats respond in kind, Democrats can take over the federal courts. The message from Democrats to McConnell ought to be: Make my day.

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