The United States is at war with itself.
With that start, I could take the next thousand words in many directions. I could write of the unmasked contempt that incumbent Donald Trump and challenger Joe Biden had for each other through the most unpresidential of presidential debates. I could write about the marches for racial justice taking place for months across the country, aptly described as the largest protest movement in the nation’s history. I could speak of the unspeakable — America’s botched handling of everything from coronavirus to climate change.
Let me put those subjects aside and take the space here to focus on a war about to erupt in Washington DC over a seat vacated by an 87-year-old woman. At 5 feet and an inch, she was a towering presence on the nation’s Supreme Court, champion of gender, civil and voting rights — and a pop icon memorialised in t-shirts and tattoos. I speak, of course, of the Notorious RBG, Justice Ruth Bader Ginsburg, who finally succumbed to cancer. In the coming days, the war over her legacy, her Supreme Court seat, may overtake all other issues — a pandemic still raging, an economy in collapse and fires and floods of biblical proportions.
The US Senate has a Republican majority and with the party’s leader, Donald Trump, in the White House, it can replace the left-leaning liberal, RBG with a conservative judge before the election. The effects would be long-lasting, as this would firmly tilt the highest court in the land to the right for decades to come and overturn fundamental laws that could affect a woman’s right to an abortion or the sweeping affordable healthcare act, known as Obamacare, among others. Trump has, in fact, selected an ultra-conservative, Judge Amy Coney Barrett, as his nominee and is aiming for a Senate confirmation before Election Day on November 3. The Democrats have the cards stacked against them, since the bodies that can make this happen, the Senate and the White House, are currently in Republican control. With enough Republican senators lining up to support ramming a new justice in before the elections, the prospects for blocking such a move look bleak.
Oddly, this may help the Democrats on the Election Day. Sometimes, the most powerful strategies emerge when you have your back against a wall.
To my mind, the Democrats and their presidential candidate, Joe Biden, have a clear option that dominates all others: Go nuclear. By this I mean they must commit to a credible threat, promise that if they were to win the White House and Senate, they will abolish the filibuster — a tactic that blocks or delays Senate action on a Bill, usually by talking endlessly — and expand the size of the Supreme Court by adding more seats. The laws allow such a possibility. This way, if Judge Barrett is installed, they can re-balance the political makeup of the Court by adding seats and “packing” it with their hand picked liberal justices.
The idea comes with some retaliatory risk; it sets a precedent for a repeated game of tit-for-tat Supreme Court expansions when the shoe is on the other foot and the other side is in power. However, such a retaliation would happen further out into the future and endless court expansions could be unpopular among voters. So it is a risk worth taking for now. This nuclear option is beginning to get some adherents already. Kamala Harris, Joe Biden’s running mate, has hinted she is warm to the idea. Biden has in the past been concerned about the tit-for-tat precedent this might set, but is now keeping his mouth shut on the topic. When asked in the debate about whether he would push to pack the court in the event of a Democratic win, he deflected and didn’t answer.
I feel he shouldn’t hold back and come out and say, heck yes, that option is on the table. For Democrats, this is a no-lose strategy, as it will maximise voter energy around a galvanising cause. The issue would bring more voters to the polls and bring more support to the party. The signs of such momentum are already apparent. In the first hour after RBG’s passing, a key organisation that tracks fundraising for the Democrats raised more money in an hour than in any other one-hour timeframe since it had launched 16 years ago. It broke its all-time record in money raised in a single day.
Nationwide polls suggest that fast-forwarding Judge Barrett’s appointment to the Supreme Court pick is unpopular with a majority of voters; so this should help with the momentum favouring Democrats.
Why did Trump and the Republicans execute a pre-emptive strike? They had two options. One was to forge ahead and install a conservative judge. In the coming weeks, the headlines will be dominated by the bitter confirmation process. This might take some attention away from other issues: Trump’s disastrous handling of COVID-19 or his monstrous debate performance or that he has masterfully avoided paying income taxes by running failed businesses and taking $70,000 deductions for hair-styling. And then, of course, Trump would boast of having appointed three conservative Supreme Court judges as his campaign pitch. That said, any benefits would be neutralised if the Democrats were to successfully use voter fury of having Judge Barrett pushed through in an election year — an act that Republicans themselves had argued against back when Obama had a similar chance to fill a Supreme Court seat in 2016. Alternatively, Trump could have campaigned on a promise to appoint a conservative judge after he gets re-elected. Such a move would have disappointed the “bird in the hand” voters eager to confirm a right-leaning judge while Trump is still in office; but it could have fired up the campaign to re-elect him and giving it a renewed rationale. By jumping the gun now, Trump may, ironically, pull off a Supreme Court win, but has added fuel to the Biden campaign and set a potential retaliatory strike in motion.
Thus my advice to Biden: Go nuclear. You have nothing to lose at this point. My advice to Trump: Accept the election outcomes if you lose and then quietly disappear. Unless, of course, there is a subpoena that requires your appearance in front of a judge in a court to answer some questions about years of tax dodging and $70,000 haircuts. Count yourself lucky, that the judge is not RBG.
This article first appeared in the print edition on October 2, 2020 under the title ‘The war within America’. The writer is Dean of Global Business at The Fletcher School at Tufts University, and founding executive director of Fletcher’s Institute for Business in the Global Context.