On Saturday, writing for The Bulwark, conservative editor Jonathan Last warned Republicans that attempting to immediately fill Ruth Bader Ginsburg’s Supreme Court seat before the election “will destroy the remaining public legitimacy of the Supreme Court. Full stop.”
“The Republican party’s willingness to invent, bend, cherry-pick, or break rules and norms as needed in the pursuit of power would be undeniable,” wrote Last. “Imagine what would happen if Ginsburg were replaced before November, and then Joe Biden wins the presidency and Democrats capture the Senate. There would be enormous pressure to somehow reform the Supreme Court. And it is not clear what principled counterargument might be mounted against such ideas, even if the ‘reform’ proposals amount to enlarging and packing the Court.”
But that would be “absolutely nothing” compared to how bad things would be if Trump lost, and then tried to force through a replacement in the lame-duck session immediately after the election, wrote Last. “The political retribution would be incalculable,” he wrote. “The Democratic party would believe — with good reason — that there are no limits to majoritarian rule. At which point, the powder keg would explode.”
The only way to avoid a political nightmare scenario, wrote Last, is if Trump decides to respect Ginsburg’s dying wish for her seat to be held vacant until 2021. “[Trump] could issue a statement with both Mitch McConnell and Chuck Schumer stating that all parties—both Republicans and Democrats — intend to respect this great American’s last wish. That they recognize that what happened to Merrick Garland had poisoned the Supreme Court and that, by postponing this nomination, they hoped to create the space for this organ of the political system to heal,” wrote Last.
“But it’s 2020,” he added. “So instead we have Mitch McConnell — in literally the same statement in which he mourns Ginsburg’s passing — announcing his intention to hold a vote on any Trump nominee. It’s going to get worse.”