Do not fill Ruth Bader Ginsburg’s Supreme Court seat until after the 2021 inauguration

The GOPers may not have the votes to confirm a replacement for the late, great Ruth Bader Ginsburg. Sens Murkowski and Grassley are on clear record as saying they will not vote for a new justice this year. Sen Collins has clearly stated that she will not do so before the election. If those three stay true to their word, the Rs are at 50, one short of a clean vote for cloture to break a Democratic filibuster before Election Day and 51 after Election Day through the end of the session, and Sen Grassley is on the Judiciary Committee, so they may not even be able to get through the Judiciary Committee process by then anyway. Those totals would be 49 and 50, respectively, if Sen Romney joins with his own commitment. If Mark Kelly defeats Sen McSally in AZ, as he is favored to, he would be seated on November 30, 2020, making the totals 48 and 49, from December 1 to the start of the new session, depending on Sen Collins’ always wavering resolve. I know that leaves a lot of “ifs” but, in the best case (we win the Senate and the presidency), that leaves the GOP with a maximum window of only 27 days – from November 3 and 30, including Thanksgiving, when an executive tiebreaker can theoretically be used to break a cloture filibuster. And that assumes Sen Collins’ statement is interpreted to say she may vote for a scotus nominee anytime after Election Day, and that we couldn’t get even one more GOPer to commit. So, counting Romney on our side (I really hope I’m not wrong to assume he’s persuadable on this point), this is how this could break down:

– Through 11/3, 45 days from now: max 49 GOP votes available

– 11/3-11/30, 27 days: max 50 GOP votes available, unless Collins extends her commitment

– 12/1-1/3 if Kelly wins, 34 days: Max 49 GOP votes available or 48 depending on Collins

– total: 106 days

Obviously, if we lose the election, any delay past 106 days is pointless.

Based on this, I think we should do the following:

– call our senators, R or D, and get them to commit to filibuster a GOP nominee; note that the filibuster is required because otherwise the GOP still holds the majority of quorum needed for a cloture vote (as low as 47) short of a filibuster (50+1)

– use this to drive turnout to capture the Senate in our campaign and GoTV efforts

– for voters in AK, ME, and IA, call on Sens Grassley, Murkowski and Collins to reaffirm their prior commitments

– for voters in ME, call on Sen Collins to extend her commitment past Election Day, bearing in mind, God willing, that she may be a lame duck sometime in that interval

– for voters in UT, call on Sen Romney to join Sens Grassley and Murkowski in committing to no vote this session

– call for additional GOP defections

– donate, support, phone bank and canvass especially to Mark Kelly in AZ

– call on VP Biden and D Senate leadership to commit to pack the court as a credible threat if and only if the GOP insists on a cloture vote

Arguments to senators should include the following:

– precedent: a vote on a scotus nominee should not happen this close to end of session

– fairness: Merrick Garland

– prior commitments: Sens Collins, Grassley and Murkowski

– legitimacy: a confirmation this year would delegitimize Scotus and the new GOP justice, further destabilizing the country

– turnout: any GOP push to pass a nominee out of Judiciary between now and 11/3 would galvanize Democratic turnout and further endanger GOP members

– threat (only with VP Biden and Sen Schumer’s commitment on this point): we will answer unfairness with unfairness and push to pack the court if they push to confirm this session

I think I have this right, but let me know please if my analysis is wrong in any way. This is going to be a tough fight, regardless, and, no I don’t think we can trust any of those four GOPers to follow through. But we don’t have any other choice at this point.

NB: Sen Graham of SC is intentionally omitted, because he is a liar.

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