Supreme battles

  • Susan Estrich

    Susan Estrich

Posted9/25/2020 1:00 AM

By Susan Estrich

Twenty years ago, five conservative Supreme Court justices picked the president.


It could happen again.

Yesterday, Sen. Mitt Romney was President Donald Trump's nemesis and a hero to everyone else. No more. Romney gave Senate Majority Leader Mitch McConnell the vote he needed. Fifty-one Republicans are ready to go forward.

Most Americans think the new president should pick the new justice, the way Trump did four years ago. But that will certainly not stop Trump. He is a very bad loser. Correct that: He never loses. I always shoot down ideas about brokered conventions and changing the Electoral College, and for a time, there was concern that Trump would not accept the judgment of the voters or the court. No need to worry about the latter if you can be sure that any decision will be in your favor.

Of course, there will be hearings and a vote. As of Tuesday, McConnell had the votes. This is not rocket science, not even highfalutin constitutional law. It's just about counting to five. Five justices is all you need to win every case. And five justices is all you need to reelect Trump if it comes to that.

And packing the court? The idea started circulating within hours of Justice Ruth Bader Ginsburg's death, with no mention of former President Franklin D. Roosevelt. If FDR couldn't pack the court, can Senate Minority Leader Chuck Schumer? Not likely. Since 1869, the court has had nine justices. The Constitution is silent, but history weighs heavily. The number has remained stable because changing the number of justices every four or eight years with the political wind threatens to strip the highest court of the legitimacy it needs for its decisions to be respected (the U.S. Marshals Service, the able and dedicated men and women you see in federal courthouses across America, is not an army that enforces decisions). Besides, any action taken by Senate Democrats in January (assuming Democrats have a majority) to expand the court would almost certainly face a myriad challenges, which would be decided by the very court they're trying to strip of its power.

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It is heartbreaking to see the court fall into the hands of the hardcore right. It is heartbreaking to know that after years of fighting to move things forward, to fight racism, to protect women and minorities, to provide health care for all, the clock will now be turned back. Chief Justice John Roberts, the "traitor" to many conservatives because he tried to keep the court out of partisan politics after the George W. Bush v. Al Gore election, has been effectively sidelined: Even if he votes with the court's moderates (which is what they are), with Ginsburg gone, that only makes four.

For our children, the court will be the problem, not the solution.

The only answer is to win elections.

Nomination hearings in the middle of a presidential election are risky beyond words. But Trump, not Democratic nominee Joe Biden, needs to change the dynamic of this election, and forcing the Democrats to attack a woman whom suburban women might identify with may be one of Trump's best shots.

Ever since Robert Bork's hearings, where the very conservative Yale Law professor made a fool of himself answering detailed questions based on his academic work, as well as his service in government, Supreme Court nominations have become full-blown political productions, complete with heroes and victims. The senators prance for the cameras. The audience turns in for the show. And, currently, Donald Trump and Mitch McConnell are in control.

This was not supposed to happen. When she decided to stay on the bench, RBG was healthy, with an excellent chance of surviving to see a new president. And then the cancer came back -- as it too often does, whether you're a Supreme Court justice or the guy at the corner. Her dying wish, dictated to her granddaughter days before she died, was that the winner of the election would choose her replacement. Donald Trump could care less. He has gone so far as to suggest her granddaughter was lying. That's Donald for you.


Filling the seat left by this extraordinary woman ought to be a moment where the country shows its greatness, not a circus of ambition in which the court is nothing more than a pawn of a president who will do anything to win. It is a sad day, not only for those who admired Justice Ginsburg, as so many did, but also for those who believe in the rule of law, not politics. Such concerns will not stop Donald Trump.

Get ready for more noise, and a replacement who could never fill the shoes left by a great American.

© 2020, Creators

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