By Foreign Correspondent Josephine Baker in Chateau-Thierry with
Scott V. Sandford, Justice Correspondent and A. Cahan, Hebrew Affairs Editor
The New Year was marked by two exceptionally grim tidings: the death of legendary Supreme Court Justice Ruth Bader Ginsburg, 87, and the death count of Americans lost to coronavirus had reached 200,000. As the experience of Germany shows, 150,000 to 160,000 of those deaths could have been prevented by a competent, functioning national government.
By the way, how many is 200,000 deaths? It's getting cheap to say it's 50,000 Benghazis or a 9/11 every week.
By comparison, the American War Graves Commission oversees the memorials to about 207,000 brave Americans dead and missing from World Wars I and II. We won't lose that many to coronavirus until about Columbus Day at current rates.
Here's the US Military Cemetery in Normandy, near the D-Day landing site. Counting the missing, there are 11,000 remembered there:
Here's another 6,000 at the Ardennes Memorial Cemetery:
And 5,000 in Brittany:
Finally, here's Belleau Wood, where ol' Bone Spurs was a no-show because he couldn't be bothered to drive through the rain to honor “losers:”
Another 3,000 here.
That's about 25,000 in total. Multiply that by eight and you get to the number we've lost due to COVID-19.
With all of these losses at this season you would think the nation would mourn, and reflect on all who have died.
Instead:
Because if the deaths of Ruth Bader Ginsburg and 200,000 other Americans aren't cause for celebration, what is?
But with Republicans, as we're fond of saying, it's never just one thing, it's every f***in' thing. It's not just the obscenity of using Justice Ginsburg's death as an applause line for a bunch of suckers many of whom will likewise soon be dead from the virus they picked up at this super spreader event.
It's the hypocrisy. Remember way back in February 2016, when the Republican Senate refused to grant real President Obama's nominee, Merrick Garland, so much as a hearing on the principle that in an election year, the next elected President should pick the nominee? It's true. But that was then and those very same Republicans who were so solicitous of the popular will nine months before an election don't seem to have the same concern 44 days before the next one:
Senate Republicans defended their plans to seat a nominee chosen by President Trump in a presidential election year, despite previously blocking the consideration of a Supreme Court nominee put forward by President Barack Obama in 2016.
“What we’re proposing is completely consistent, completely consistent with the precedent,” Senator John Barrasso, Republican of Wyoming and a member of Senate leadership, claimed on “Meet the Press.”
But Democrats can wail about hypocrisy all they want, and Republicans, whose only superpower is invulnerability to shame, will just laugh, as they always do when Democrats bring withering Tweets to a gun fight.
So what can be done? Lots, assuming we do our jobs and elect a Democratic President, Senate, and House.
If the Republicans ram through some extremist reactionary Federalist Society fembot, thereby continuing their efforts to pack the Supreme Court with rapists and other reliable conservatives, Democrats are entitled to unpack the Court by expanding it to 13 and nominating four decent Justices, including Merrick Garland.
It's a fun fact that the number of Supreme Court justices isn't in the Constitution. It's a statute that can be amended by the same institutions that enacted it to begin with. Check it out. Title 28 of the US Code covers the judicial branch. Here's the first provision:
Seems pretty clear to us that if in 1948 the Congress and President could enact a law with the word “eight” in it, in 2021 those same institutions could amend the law to read “twelve.”
Now the notion of changing the number of Justices to remedy 20 years of Republican Court-packing was regarding until recently as both extreme and bootless. But it's both legal and proper. If anyone can think of anything else that would persuade Moscow Mitch not to ram through a replacement for poor Justice Ginsburg before January 20, please let us know.
Some have objected that changing the number of Justices would set a bad precedent and that a future Republican Congress and President could further expand the Court to suit their purposes.
Let's do a little thought experiment, shall we? Let's assume Moscow Mitch gets his way, but that over the next eight or sixteen or twenty-four years the Democrats manage to confirm a majority of non-crazy Justices. Does anyone think the Republicans would hesitate for one second to add more Justices if they thought they could get away with it? And if so, show your work, because we can't think of a single norm they haven't shredded in pursuit of power and money.
Eventually, in a sane world both parties would agree to a bipartisan rewrite of Article III providing for 18-year terms for all federal judges but only if both understand that failing to do so would lead to the infinite expansion of the Court, like the universe.
Perhaps realizing that the only thing that Republicans understand is retaliation, some fairly mainstream Democrats have begun to talk about Unpacking the Courts.
Former Attorney General Eric Holder, for one:
NEW: @EricHolder says if Republicans rush through another justice it would be an “illegitimate” 6-3 majority and Democrats should respond with court reform that includes adding additional justices to the Supreme Court. pic.twitter.com/JQohzRJZWF
— Patrick Rodenbush (@pnrodenbush) September 19, 2020
And House Judiciary Committee Chair Jerry Nadler. Really. Jerry Nadler:
If Sen. McConnell and @SenateGOP were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court. 1/2 https://t.co/BDYQ0KVmJe
— Rep. Nadler (@RepJerryNadler) September 19, 2020
Perhaps moderate folks like these two are hoping that the threat of Court expansion will be enough to shake loose enough Republicans to keep Moscow Mitch from confirming Justice Opus Dei.
That may be the biggest drawback. Even if the Republicans don't succeed in ramming through a hideous replacement for Justice Ginsburg, Democrats should still Unpack the Courts next year to undo the damage caused by denying Merrick Garland a fair hearing and confirming two angry reactionary sex offenders.
If Moscow Mitch were smart, he'd defang the Democrats by agreeing to keep the seat open in exchange for Democrats not adding new seats in January. Fortunately for those watching the Court with increasing dread and alarm, no one ever said he was smart.
And one more thing: Happy New Year.
UPDATE: Sept. 20, 1642Z: Dahlia Lithwick also ready to rumble:
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