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Gaming RBG’s Replacement

September 24th, 2020 by dk

Nobody knows how replacing Ruth Bader Ginsburg on the Supreme Court will go. But here are a handful of spun scenarios to show how it could go.

Don’t be distracted by details that don’t matter. And don’t lose sight of a few seemingly unrelated matters that will definitely tip the calculus of the key players in this drama.

There are 434 members of the House of Representatives and 99 Senators who don’t matter. How this plays out is up to three, and only three, people: House Speaker Nancy Pelosi, Senate Majority Leader Mitch McConnell, and President Donald Trump. Assume each knows more than we think they do.

In normal times (Remember those?), a Supreme Court nomination is only about itself. The power of a lifetime appointment drowns out any other considerations. But these are not normal times. Decisions and strategies rotate around the dark matter of this November’s election. Ignore the denials. Politicians rarely admit to considering politics.

Other factors complete the constellation being considered by Pelosi, McConnell and Trump. In chronological order: a stopgap spending bill, the next COVID stimulus package, filling John McCain’s seat permanently, counting the November votes, and the latest challenge to Obamacare.

Make no mistake. Pelosi could have shut down large parts of the government next week if she had wanted to. Government funding was scheduled to run out at midnight on September 30.

It wouldn’t have stopped the Senate from meeting and confirming a new Supreme Court justice, but she could have shown in stark relief that nothing else matters to the Republicans. Funding is scheduled now to extend until December 11. The unanswered question is what concessions did Pelosi receive for her acquiescence?

Pelosi knows very well that Trump wishes he could be talking about another batch of COVID relief checks (with his name on them) at rallies. Something happened to prevent that political deal from coming together. What? Pelosi knows, even if we don’t.

What McConnell knows better than anyone is how to count votes. He may have one fewer in late November. Voters will decide on November 4 whether Sen. Martha McSally keeps her Arizona Senate seat. If Democratic challenger Mark Kelly wins what is technically a special election, he could join the Senate as early as November 30.

Why wouldn’t McConnell delay any vote until after the election? A lame duck confirmation would give his vulnerable Senators some breathing room. He may still do that, but that’s not the current talking point. Again, assume he knows what we don’t.

The Supreme Court will have a busy November. If the election is close, there may be a half-dozen Florida-style recounts to administer and adjudicate. Having a clear majority (without relying on Chief Justice John Roberts) in those chaotic days would be handy for Republicans.

And then there’s the latest court challenge to Obamacare, scheduled for oral argument on November 10, one week after Election Day. Republicans want to  erase Obama’s legacy. Strip everything else away and this may be Republicans’ long-term plan — even if that plan ends with Joe Biden becoming President in January.


Don Kahle ( writes a column each Friday for The Register-Guard and blogs at

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