How the Ginsburg vacancy changes the election's stakes

A President elected with a minority of the vote, backed by Senators representing a minority of the public, using procedural hijinks to cement a judiciary that will shape American life: to many, the prospect amounts to a subversion of democracy and a clear sign that the structures of government are badly broken. Some Democrats, including prominent elected officials, say that if their party wins the White House and Congress, they should make big changes: eliminating the Senate filibuster; adding Washington, D.C., and Puerto Rico as states; and expanding the size of the Supreme Court, adding two or more additional Justices to compensate for the ones “stolen” from their party—ignoring the squawks of the GOP just as Republicans ran roughshod over them. In the meantime, Democrats are girding for the nightmare scenario, in which the unelected court installed through minoritarian means is called upon to resolve a disputed 2020 election—and hands a second term to a President who never once won the popular vote…

At Trump’s rallies, a new chant emerged: “Fill that seat!” Republicans predict the court battle will shift attention from Trump’s mishandling of the COVID-19 pandemic and its economic toll. “This helps Trump, and it helps Republican Senate candidates,” GOP donor Dan Eberhart argues. “We are not running solely on the COVID response and the economy anymore—this resets the race.” A White House official predicts the fight will heighten the volatile atmosphere in a country already contending with a pandemic, a recession, racial justice protests and natural disasters. “You think what a full-on war Kavanaugh was,” the official says. “It’s going to be like that times 1,000.”

Trump is trailing in the polls and has few legislative accomplishments to his name other than his 2017 tax cut. Key promises—a border wall, a health care plan, an infrastructure bill—remain unfulfilled. Seeing this, McConnell began telling confidants that he was in the “personnel business”; the massive number of judicial appointments he’s pushed through the Senate have become the accomplishment he touts. Trump may lose the presidency, McConnell may lose the Senate—but the judiciary they shaped will outlast them both. That, in the end, may be the only electoral calculation that matters.

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