Iceberg Ginsburg Sinks Biden Campaign
The death of Supreme Court Justice Ruth Bader Ginsburg has wrecked the presidential campaign of former Vice President Joe Biden.
Of course, the election isn’t over. If you support President Trump for another term in office, you still must go and vote for him. Bring family and friends. Write a few checks, too.
But Biden’s campaign narrative is shattered. It’s a strategic disaster.
The country is already in the midst of a cultural war. It’s vicious. Things are polarized, if not tribal. We smelled smoke all summer.
Now Ginsburg’s death has added a new level of toxicity to the 2020 political cycle. And this is not just a passing phase of the news cycle.
Post-Ginsburg, the Constitution itself may as well be on the ballot.
Biden’s campaign is on the wrong side of all this.
Let’s dig in…
Last Friday, President Trump spoke in Bemidji, Minnesota, an “Iron Range” mining town in the northern part of the state.
Unsurprisingly, Trump went off script. He ignored the teleprompter and bragged about it. For over an hour, he gave an impromptu mix of stump speech and inside-politics stories. Trump discussed buying jets from Boeing, and how Jeff Sessions became Attorney General.
Trump thanked several Democrat mayors from the region who endorsed him. He bantered with the audience and kidded about college football. Trump even gave a shout-out to the pilots of Air Force One, who obligingly waved from the open cockpit window of their beautiful blue and white airplane.
Rhetorically, Trump was all over the map. But he was having fun and the crowd loved it…
When his speech was over, Trump left the podium. Members of the press approached him and asked for a comment on the death of Justice Ginsburg — the news had broken while Trump was giving his talk.
Trump replied, “She just died? Wow, I didn’t know that. I just… You’re telling me now for the first time.”1
It was a bit surreal. In the background, Elton John’s song “Tiny Dancer” played over the loudspeaker. The Trump campaign often uses that tune at rallies.
Looking pensive, Trump stood still for a few seconds. Then he continued, “She led an amazing life. What else can you say? She was an amazing woman, whether you agreed or not. She was an amazing woman who led an amazing life. I’m actually saddened to hear that.”
Kind words… Reflecting ancient, noble advice: De mortuis nihil nisi bonum.
Of the dead, say nothing but good.
Beyond common courtesy, though, in his own way Trump was hinting at the pivotal role Justice Ginsburg played in American life, law and — now in 2020 — presidential politics.
Ginsburg spent 27 years on the nation’s highest court. She was effective. Her opinions shaped the outcome of many big cases.
But in death, Ginsburg has now surpassed “legal.” She has become strategic.
That is, Ginsburg embodied a certain aspect of modern American law, if not culture and politics; so much so that she was what the great military writer Karl von Clausewitz would have called a “center of gravity.”
Ginsburg embodied a school of “Progressive” legal thought that pervades much of the national mindset. She believed that the U.S. Constitution is outdated, not a fixed guide to governance, and that courts — meaning judges — should reshape the document to address current issues.2
In short, Ginsburg regarded federal courts as a super-legislature, there to fix what Congress cannot or will not accomplish.
And now, in a quirk of timing if not fate, Ginsburg’s death has abruptly cracked the American political and social divide wide open.
In other words, something else is now on the ballot for Nov. 3. The Constitution is in play, along with the arc of American history and the basic, strategic narrative of the country.
Of course, COVID-19 is still “news.” But from now through Election Day — and beyond — stories about the Supreme Court, the Constitution and Ginsburg’s successor will dominate headlines.
For Joe Biden and his campaign, an entirely new range of issues has just surfaced, like a nuclear submarine cracking upwards through the ice flows.
Until last Friday, the Biden campaign machine was operating in a low-energy, steady gear.
The Biden plan was to run negative political ads while keeping the candidate buttoned up in his basement bunker. Periodically, Biden would emerge to critique Trump, read a canned speech before friendly media, and show off his sartorial style in facemasks.
Well, that schtick won’t work anymore.
In the presidential campaign this year — and Senate and House campaigns, too — a battle royale will now play out concerning the Supreme Court and Constitution.
Just in this sense, Ginsburg’s last act as a Justice has wrecked the Biden campaign strategy.
President Trump has already announced that he’ll nominate a woman to replace Ginsburg. The name of the nominee is on a list that Trump previously released. There will be no surprises.
And the next question for Biden is, “Who is your nominee, Mr. Vice President?”
Biden can refuse to answer. Perhaps he has no list of potential Supreme Court picks; at least, not that he wants to make public, lest people see a roster of left-leaning judges, if not faculty lounge kooks.
Or Biden can name names. “I’d choose from among these five splendid candidates,” he might say. And that alone would hand more campaign ammunition to Trump.
Meanwhile, Democrat politicians and their enabling media are howling over the propriety of Trump making any nomination at all, a mere six weeks before Election Day. “How dare he!”
But the Constitution doesn’t set a calendar for nominations. It just defines the process by which a president nominates people to the Supreme Court. Then they are confirmed (or not) via “advice and consent” from the Senate.
Obviously, Republicans currently control the presidency and Senate. They are empowered to fill the now-vacant seat on the Supreme Court. Raw politics, right? Of course!
Other political actors have mentioned impeaching Trump (again). And expanding the size of the Supreme Court in the future, to overwhelm the influence of any new Trump appointee.
Voila… Democrats have just handed more campaign issues to Trump, as well as Republican Senate and House candidates. The script practically writes itself…
Any Republican worth his/her salt will ask the opponent, “Do you support impeaching Trump because he’s doing what the Constitution requires him to do?”
Another loaded question is, “Do you support packing the Supreme Court?”
Keep in mind that for all the programs placed into motion by President Franklin Roosevelt, his “court packing” scheme of 1937 is remembered by history as a political disaster.2
Then we have whomever Trump nominates to the Supreme Court. She is about to walk into a den of fire in Washington and get carpet-bombed via the so-called “vetting” process.
In 2018 the Senate held judiciary “hearings” on now-Justice Brett Kavanaugh. And they were a toxic spectacle.
Among the most revolting moments of 2018 were when a certain California Senator, Kamala Harris, asked a series of snarky, obnoxious questions. Hmm… Harris… familiar name.
What now? Will upcoming Senate hearings go full-Chernobyl, mere weeks before Election Day?
One can only imagine the calumny… Preening Senators will kick the tar out of Trump’s nominee, likely some nice Catholic lady who graduated summa cum laude from law school.
All this over the issue of replacing Ginsburg. And in the process, showing off American politics at its ugliest.
Which brings up another angle…
As part of its course in strategy, the U.S. Naval War College teaches students to review events in terms of “counter-factual” scenarios.
For example, what if Pickett’s Charge had been successful on day three of the Battle of Gettysburg?
Probably, that key battle would have had a different outcome, likely changing the result of the Civil War.
Or what if Admiral Spruance had failed to provide certain clear commands at the Battle of Midway? Would the American fleet still have prevailed against Japan’s naval air power?
Absent Spruance, the outcome at Midway likely would have been different. The course of the Pacific War might have changed dramatically. (We discussed it here.)
Here’s the point: sometimes you don’t really understand “what happened” until you examine what “might have happened” from many angles…
Let’s do something similar with Justice Ginsburg. What if she had resigned from the Supreme Court seven years ago, at age 80, versus remaining until her recent death at age 87?
First, age 80 is “elderly,” even these days. Yet despite immutable aspects of human biology, Ginsburg promoted an entire cottage industry around tales of how hale and fit she was.4
The fact is, though, Ginsburg had long-running medical issues, including cancer. She was sick for several years and obviously had problems that led to her death.
Yet Ginsburg hung on to that Supreme Court seat… clung to it, even.
So what if Ginsburg had retired in 2013, when Barrack Obama was still president?
Under Obama, Ginsburg’s replacement on the Supreme Court would almost certainly have been a left-leaning woman — a judge or law professor with views of the Constitution similar to those of Ginsburg.
In terms of court cases and outcomes, it’s more than fair to speculate that an Obama appointee from 2013 would’ve followed much the same judicial track over the past seven years as Ginsburg. And it all would’ve happened without the age and medical issues.
Viewed that way, there was never any true judicial requirement for Ginsburg to remain on the Court past the middle of the Obama years. She could have — and in hindsight, should have — exited the stage.
However, Ginsburg apparently allowed her ego to get the better of her. No doubt she was enabled by acquaintances and admirers. And she absolutely became a cult-figure via nothing less than a saccharine level of media coverage.
But then came the election of 2016, and President Donald Trump. All of a sudden, Ginsburg’s health became a focus of national attention; and to many, of worry.
Recall the words of that sturdy old hymn, “We know not the time when He cometh.”5
Well… the other night, He came…
Now, six weeks out from Election Day, this is not where the Biden campaign wanted to be. Replacing Ginsburg raises Constitutional issues that go far beyond the simplistic Biden campaign theme of “Orange Man Bad.”
Biden never planned to address what’s currently happening with the Supreme Court or Constitution, nor is he or his campaign equipped to pivot and fight on this new battlefield of ideas.
For example, Ginsburg was no friend of the 2nd Amendment, an issue Biden desperately seeks to avoid.
Consider the case of District of Columbia vs Heller (2007).6 Ginsburg voted against defining firearms ownership as a “personal” right, despite ample Constitutional history concerning the matter. (I touched upon this topic a few weeks back.)
Now Biden must battle the “gun grabber” label in numerous key states… which will be tough to do because he has promised exactly that.7
The 2nd Amendment issue alone raises other firearms-related policies rooted in Constitutional protections, such as “stand your ground,” and “castle doctrine.” Or banning certain so-called “assault” guns and magazines. Or taxing ammunition.
Again, post-Ginsburg we are on terrain that Biden is unprepared to defend.
There are many other Constitution-level issues, too… Bill of Rights matters, statutory, regulatory.
All are dependent on who sits in a certain chair behind the wide mahogany bench of the U.S. Supreme Court.
Here’s how to sum it up…
Justice Ginsburg stayed at her job too long.
She played the odds of longevity and died at an inopportune moment for Democrats.
And like an iceberg that became visible only at the last moment, Ginsburg’s death has wrecked the presidential campaign of Joe Biden.
On that note, I rest my case.
That’s all for now… Thank you for subscribing and reading.
Managing Editor, Whiskey & Gunpowder
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