Terry H. Schwadron
Sept. 21, 2020
Is there a Donald Trump win in the Supreme Court mess even if confirmation of a replacement for Justice Ruth Bader Ginsburg somehow is delayed?
There is a good argument that he’s already gotten what he wants from the situation: No one is talking about Covid-19 and 200,000 dead Americans on Trump’s watch, or millions still jobless, or racial discord. They’re talking about whether Donald Trump is going to pull off a nomination of a decades-long turn in national Supreme Court decision-making and a state-sanctioned theft of the presidency in the November elections.
They are talking about him, Donald Trump, not the problems he has brought about in four years.
For a guy who measures victories in minutes won on television ratings, it sounds like Justice Ginsburg’s tragic death has delivered Trump a public relations bonanza.
Others may worry about whether it is appropriate for a last-minute nomination to the court, or about the odds that just three or four Republican senators might recognize something like fairness, or even about changing the court just as this election delivers a host of sticky, partisan, mechanical voting problems to the Court.
By this logic, Trump shouldn’t care. Of course, he’d undoubtably like a third successful Supreme Court nomination to cap his four years before the election, but what he likely really wants is the attention on him as the kingmaker of the moment — free of any association with a contagious illness running out of control even as he leans on his own public health agencies to produce a string of positive, if scientifically incorrect, messages and crazy talk about the availability of 350 million coronavirus vaccines in the next 10 minutes.
Substance or Politics?
You and I might want to talk about the real effects of a solidly conservative Supreme Court on issues that only start with abortion and immigration, but will extend to worker and consumer rights, fair enforcement of environmental rules, and the nation’s health systems. If this anticipated new court majority can reinterpret the thinking behind Roe v. Wade, as predicted, why not rethink same-sex marriage, the role of religion in the schools and workplace, or about eliminating Congress’ role in oversight of executive branch powers.
But for Trump, whose sole concern seems politics and reelection, this death is a happy moment of peace from virus and discord.
Indeed, the louder the voices of Americans demanding a say in the direction of the Supreme Court makeup, the better for Trump.
Why should Trump actually care whether the confirmation hearings and vote come before election day? His work is already about done: Trump just needs a name, and he’s got a fistful, regardless of background.
Why should Trump care about whether Senate Majority Leader Mitch McConnell has any trouble rounding up all the votes he needs at tricky moment either before or after an election that may make McConnell the new Senate minority leader? Even if a confirmation vote should fail, Trump will be the guy who tried to deliver a generational change. He will look great to his base, and won’t be disliked any harder by opponents.
In the meantime, importantly, he won’t be tagged with the multiple simultaneous contagions hitting our society. Trump just gained the political attention-grabbing moment he so craves.
The name, of course
There will be a lot of speculation until the name pops later this week at the White House.
Trump has already played political card one by saying he will name a woman. Hmmm, where have we heard that promise before? Oh yes, it was opponent Joe Biden, who named Sen. Kamala Harris as vice president, the same Senator Harris who is on the Judiciary Committee who will now be questioning the candidate in confirmation hearings.
Among the potential candidates is Barbara Lagoa, 52, a Cuban-American judge from Florida, the state that Trump needs to win. She was named and confirmed in a rare bipartisan vote of 80–15 to the federal Court of Appeals 11th Circuit in 2019. Unlike some nominees from this administration, she has an extensive legal background and has been a judge in state and federal courts.
Her background and positions aside, for Trump, Lagoa’s potential nomination would be a sure sign that this moment is about politics as much as about the direction of the Court. Among other things, Lagoa could become the second Latino justice, following current liberal Justice Sonia Sotomayor, and a direct appeal to Latino voters.
Trump wants Florida, and he sees possibilities among Latino voters. Picking her would assure this is about politics.
It’s not the right way to look at a generational change in the Supreme Court, but it does seem the Trump way of making sure this is all about him and reelection — and not about thousands of avoidable American deaths from coronavirus.