Dahlia Lithwick: Start Scaring Republicans About Ginsburg Replacement Now

By NewsHound Ellen — September 19, 2020

Slate’s Dahlia Lithwick urged Democrats to immediately threaten changes to the Supreme Court if Republicans try to ram through a conservative replacement for Ruth Bader Ginsburg.

On AM Joy this morning, Lithwick and Joy Reid discussed the battle ahead over Ginsburg’s seat on the Supreme Court. Reid played a clip of Joe Biden saying Republicans should adopt the same stance now they took in 2016 when they blocked President Barack Obama’s nominee because it was 10 months before a presidential election.

Of course, we know that Republicans care more about power than democracy. And Democrats too often get steamrolled.

But there are glimmers of hope. Noting that Senate Democrats would hold a conference call today to strategize, Reid spoke pointedly about possible tactics, as she quoted a HuffPost article:

REID: Democrats, you know, and I think to the relief of a lot the Democratic base, are not just talking. they're planning a response. “Democrats have now threatened, they've warned the Republican party, if they try to fill Ruth Bader Ginsburg's Supreme Court seat, we'll kill the filibuster. Democrats said that Mitch McConnell should wait and respect Ginsburg’s dying wish that the next president fill her seat. Some, however, threaten to eliminate the filibuster and possibly even pack the high court if the Democratic party takes control of the White House and the Senate next year.”

Lithwick agreed that gloves must come off now.

LITHWICK: For decades now, the Republican party has treated the court as though it’s its own plaything, its toy. It's devoted tons and tons of money, I would note dark money - Senator Sheldon Whitehouse has been working on this for a long time - to packing the courts with a certain kind of jurist. And I think there's been massive asymmetry because the Democrats have not necessarily done that. They've in some sense allowed the rhetoric of “the Scalia seat is our seat, it should have been the Bork seat and now it’s gonna be our seat,” and now, “this Ginsburg seat is our seat” allows that rhetoric to go unchecked. …

So, I think it’s exactly right that this framing that the courts just belong to the conservative movement, they belong to the Federalist society because they bought ‘em and they're there – that has to really, I think now be debunked, and the way to debunk it is to scare them.

And so you're quite right. In this one sense only, I disagree with Senator Klobuchar. I don't think we take it off the table. I don't think we say wait and see what happens and then we talk about structural reforms whether it's court packing, whether it's doing away with lifetime tenure, whether it's any number of constitutional reforms that are being floated.

I think we have to say right here, right now, we are going to make you feel the hurt if you continue to treat the court as though it's yours. And I agree with you completely. I think the notion that it is too early to start scaring them with that kind of language is exactly how we got into trouble in 2016.

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