The death of Ruth Bader Ginsburg, one of the most influential Supreme Court justices of all time, is first and foremost a cause for national mourning. But it is also a political opportunity. The Republicans, of course, see it that way—but the Democrats should, too.
President Trump has announced he’ll nominate Ginsburg’s successor by week’s end, and Senate Majority Leader Mitch McConnell has vowed to bring that pick to a vote this year—even if it has to be done in the lame-duck session after the election, and even if Republicans lose the Senate and the White House. Despite leading Republicans’ sanctimonious arguments in 2016 that a court vacancy must not be filled during an election year, they intend to do exactly that in 2020.
The Republicans, who have fought every political battle of the past dozen years as though it were their last, can be expected to keep their word. But even if they unexpectedly stand down from yet another divisive political escalation, or somehow fail in their effort to replace Ginsburg, Democrats must be prepared to enlarge the Supreme Court—by four justices—if they win resoundingly on November 3.
Such a radical gambit is justified by the fact that America’s political institutions this century have consistently translated minority support for Republicans into political majorities. GOP presidential candidates have won the popular vote just once since 1992. Republicans have not won the total popular vote of any three consecutive Senate elections in the twenty-first century, but due to the absurdity of that chamber’s composition—where half a million people in Wyoming have the same number of senators as 38 million Californians—they have controlled the chamber more often than not for more than two decades.
Now 53 Republican senators—several of whom won their seats in achingly close elections that would have gone blue without the GOP voter suppression tactics upheld by the Roberts court, and who represent a minority of the American population—may well confirm another right-wing justice, the third nominated in four years by a president elected by a minority of the American people thanks to the Electoral College, the most plainly undemocratic electoral institution in the democratic world.