The death of Supreme Court Justice Ruth Bader Ginsburg is devastating, and not simply because it is the passing of one of the most influential jurists in American history.
It is what comes next that should alarm us the most.
If we lived in a normal democracy in which all political parties abided by basic democratic norms and traditions, both presidential candidates would spend the next six weeks debating — among other issues — who they would appoint to the Supreme Court in 2021 should they win the presidential election.
But if we lived in that country, Merrick Garland would be a member of the highest court in the land.
Instead, four years ago Republicans — led by Senate majority leader Mitch McConnell — refused to give Garland a Senate hearing. As they argued at the time, nine months before a presidential election was too soon to appoint a Supreme Court replacement for Antonin Scalia. Fast forward to 2020 and McConnell announced within hours of Ginsburg’s death that there will be a Senate vote on Trump’s pick to replace her on the Court, even though voters in some states have already begun to cast ballots.
McConnell’s move is cynical, hypocritical, and completely in keeping with the nihilism that he has brought to bear on American politics. For McConnell, norms are for the weak. Might makes right and political power is a tool to be wielded in the pursuit of ones self-interested political goals, the consequences on the legitimacy of America’s democratic institutions be damned. We saw this when Republicans pushed through Brett Kavanaugh’s nomination to the Court after credible allegations of sexual assault, and we will likely see it play out now. While it’s far from guaranteed that McConnell will persuade 49 of his other Senate Republicans to go along with his efforts to pack the Court, one would be foolish to bet against cynicism winning the day.
If this happens, what will Democrats do in response? Should the polls hold up and they win the presidency and narrowly take control of the Senate, American politics will dramatically change. As Senate Democratic leader Chuck Schumer made clear Saturday morning, if McConnell moves forward, “…nothing is off the table.”
That means, almost certainly, an end to the Senate filibuster if Democrats win control in November. Democrats would probably move forward with statehood for the District of Columbia and Puerto Rico, which could mean four new Democratic senators. And Democrats may be emboldened to expand the Supreme Court to make up for what the party rightly perceives as the theft of two seats by McConnell and the GOP.
Democrats would have already pushed for many of these reforms before Ginsburg died. But if the GOP rams through yet another new justice, the gloves will come off — not because Senate Democrats will be furious, but because it will be the only way to hold back the bile of party activists.
This is the right thing for Democrats to do. When one party refuses to abide by democratic norms; when it acts as an agent of only its own political supporters and makes no effort to honor institutional principles; and when there is no accountability and there are no political repercussions for nefarious actions, the course forward is clear. Democrats must play the same political hardball Republicans have played for much of the past two decades.
But we should not delude ourselves about the larger corrosive effect. For Democrats to imitate the actions of Republicans means a new era of cutthroat politics in which bipartisanship remains out the window and both political parties shove aside all of America’s political traditions. To win political power will mean using it brazenly, extravagantly, and without comity or consensus. It will complete the evolution of American government from its current state to one more representative of a parliamentary democracy in which once a party achieves power, it treats it as a mandate to put in place its political agenda lock, stock, and barrel. And when the other party achieves power, it will do the same. It’s not to say cooperation will be impossible or never happen, but rather that the system will evolve in such a way that it will not be necessary — and each party will put in place reforms to increase their power and weaken the other side. Republicans have been doing that for years. Now Democrats will likely follow their lead.
Perhaps this is the politics we need. Perhaps Americans need a starker reminder of the differences between the two parties. But the ugliness and divisiveness that will flow from this will only deepen the intense polarization that already defines American politics.
In an ideal world, Mitch McConnell would step back from the brink or enough members of the Senate Republican caucus would demand he do so. Don’t hold your breath on that happening. After all, if the last few years have taught us anything — we don’t live in that America.
Michael A. Cohen’s column appears regularly in the Globe. Follow him on Twitter @speechboy71.