All the backbiting and sniping between supporters of Bernie Sanders and Joe Biden, while predictable and at times understandable, is, we all know, unhelpful.
Barring something extraordinary and unprecedented, Joe Biden will be our nominee.
He is not my first choice. He is not my second choice. The same is true of Bernie Sanders.
And I’m not here to give pat slogans like “Vote Blue No Matter Who” or anything like that.
And while I could also go on about ways either a Sanders or Biden administration would clearly be far superior to a Trump administration, not the least of which that either of the former two would provide steady, competent leadership in the face of a pandemic like COVID-19, I want to lay out brass tacks.
There are nine members of SCOTUS: John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, Ruth Bader Ginsberg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
One appointed by George HW Bush. Two, including the Chief Justice, by George W. Bush. Two by Donald Trump. Two by Bill Clinton. Two by Barack Obama.
We can look at the former five as a Republican game of escalating partisanship (with the senior member of the Court, Clarence Thomas, being an anomaly in that regard, with a long history of sexual harassment, corruption, and conflict of interest, both directly and through his wife Ginni, a Tea Party-aligned lobbyist). Since then, we’ve gone from John Roberts, who tries to at least present the appearance of an independent jurist while he make grossly ideological decisions (though, for anyone who witnessed the impeachment trial, it’s clear where his priorities lie), to Samuel Alito, who does not, to Gorsuch and finally Kavanaugh, who were chosen strictly for their ideological reasons and do not even pretend to be fair or impartial jurists.
A past makeup of the conservative majority (with Kennedy and Scalia instead of the two Trump appointees) gave us, among other horrible decisions, Citizens’ United and Shelby County v. Holder, which opened the floodgates to dark money in our elections and undid a key provision of the Voting Rights Act.
And the majority has since slid further to the right.
Remember that Antonin Scalia died in 2016, and by the Constitution Barack Obama should have named his replacement. But Mitch McConnell understands all too well the end game, and allowing one of the most stalwart conservatives on the bench to be replaced by a Democrat and turn the Court’s 5-4 ideological conservative majority into a 5-4 Democratic-appointed majority of jurists who actually appreciate their constitutional responsibility would deny, or at least delay, the ultimate victory of the GOP.
Mitch understands. And anyone who’s seen what he’s done to block Barack Obama’s nomination of Merrick Garland, but to protect both Gorsuch and Kavanaugh as they were shepherded through their confirmations should have no illusions left as to what his endgame is.
Which brings us to the current court.
Ruth Bader Ginsberg is the oldest member of the Court. Today is her 87th birthday. The second oldest is Stephen Breyer, who is 81. The odds of both of them remaining on the Court through the end of 2024 are, to be blunt, very low. If Donald Trump has the opportunity to replace either of them with another nakedly ideological right-wing associate Justice, a flotilla of decisions completely eroding any protections of free or fair elections, opening the floodgates to gerrymandering, and, of course, revisiting everything from Obergefell v Hodges which legalized same-sex marriage nationwide to Roe v. Wade.
The GOP capturing a 6th seat on the court — with four of the other five being Thomas, Alito, Gorsuch and Kavanaugh — will end America as a funtional democracy and create a one-party state.
So, while we dance the familiar dance of moderate vs. progressive Democratic nominees for President, let’s remember what’s at stake: A 6-3 right-wing majority in the Supreme Court is game over.
To repeat: If Trump replaces RBG — or Breyer, Sotomayor, or Kagan — we lose the war. Remember that through November. The GOP, I promise you, will remember too.