Emergency Podcast: The SCOTUS vacancy | FiveThirtyEight

In this emergency installment of the podcast, the crew discusses the implications of Supreme Court Justice Ruth Bader Ginsburg's passing and the new vacancy on the court.
29:05 | 09/19/20

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Transcript for Emergency Podcast: The SCOTUS vacancy | FiveThirtyEight
Hello and welcome to this emergency edition of the fight dirty politics pod cast. I'm deal and drew. Supreme Court justice Ruth Bader Ginsburg passed away Friday night. From complications of metastatic pancreatic cancer creating an opening on the Supreme Court 46 days before Election Day. Ginsburg was a feminist and liberal jurisprudence icon and her death is of course of setting to many. It also poses various questions about American politics forward. So we're gonna try to clarify what we can act but of course a lot of this we don't quite pat answers to so at least will lay out what those questions art. And here at me to do that our editor in chief Nate Silver Haney. And good morning managing editor Mike a common him mica and Dylan everybody. And politics editor sir frost case. Picking. Thanks so much guys for joining me on this Saturday morning I know we all had. Other plans that we are going to be during right now and I'll also say that there are plenty of great retrospective is I'm getting towards life and legacy. For our purposes today were going to be focusing on the process going forward at how it shapes the election and politics more broadly. And I think the most immediate questioner at the top of people's minds is. What happens next what indication we have from president trump leader McConnell. And other senator is about how they are proceeding when this Supreme Court vacancies sir if you could kick off. Rate so last night McConnell was meeting with fellow Republicans in the senate to go there. Their plants moving forward with the nominees trump this morning tweeted that he plans to fill the vacancy as soon as possible. So I think we can expect here in the next few days a nominee to emerged you know others updated short list of nominees that he published. Earlier in September here 45 nominees bear its name has split to the top. Republicans despite the hypocrisy people up highlighted from McConnell not moving forward. With Obama's nominees Merrick Garland seems intent to move their own nominees and swears and then before the election at least at this point whether that happens that's an entirely open question Hampshire well. Debate today but that seems to be that your actions that Republicans are moving in at this point. Hypocrisy Serra what do you mean that there's a big difference there Merrick Garland the senate and White House but the tropic different parties. This is. They both the Republicans control both of them it's totally different. I mean it is totally different because. Oftentimes in politics do you have the power to do and Republicans asked the power to block merit Gartman and when he sixties and they have the power to you approve someone. Now I mean is not how American politics works or as is that too cynical. That's how American politics works but American politics I think essar saying I am. Are incredibly hypocritical. And basically anything and went says you should not. Politics are broken me in game over me and sort out what it is it is sorry allow me like one program it is like. The latest in a long line of examples of why it like I don't think political journalists shouldn't treat what any politician says. As a at all meaningful in any way like you should start on the assumption just site. They're gonna do what they're gonna do what attends west these encampment and not put a lot of stock in the argument statement. So there is here tickle a Saturday when an architect to reduce artery. But let me. You are missing be element here. And since we kind of are siphoned off and that's that elections right elections are big element in this including. How will people react to perceived. Norm breaking right. If a bunch of polls come out showing that. Democrats have won this argument that hey you definitely shouldn't confirms some and before the next election right. Then more pollutants might lose their senate seats and they pay a price for that. If public doesn't care then there might give us a tradeoff for Mitch McConnell so. You know the check and balance here ultimately is. Elections. Ultimately is also fact that you know in the senate where you have to Sanders and Wyoming into senators in California that creates it. Pretty huge rural skew in the senate relative to the population as a whole. And with the GOP currently being a part of it does better with rural voters concrete supremely GOP skewing the senate too so. You know so it's all mechanics of like. How long can you maintain your. Position and power and that comes down to it the structure of the system. And it GOP advantage in the senate so let's talk a little. And about why aren't happen between now and election date Nate you said that it somewhat depends perhaps on. What the polling shows but when it comes down to those mechanics. Republicans have a 53 seat majority in the senate they can use three votes and have parents Rick tie they can't leaders for roads. What possible defectors are there from any movement to replace Ginsburg before the election and how likely is it that they would if. Wow. In theory have two groups of defectors one of which might be people who objected on the process side and which might. Kind of be more electorally interest it kind of Sanders from purple states. So in the former group you'd have people like senator Mitt Romney Lamar Alexander Chuck Grassley. Maybe the former incarnation the current one of Lindsey Graham. In the latter camp you would have certainly Susan Collins and Cory Gardner are the two Republican senators from. Hillary Clinton won states. But also. Markovic Sally Thom Tillis maybe Joan here and straighten thing is though a lot of those Republicans are you know they were kind of elected by. Conservative movement. Only Susan Collins of that group. Has really shown any tendency toward. Moderation as a Lisa Murkowski you. And pretty red state but is moderate just gonna her own. Her own thing. But yeah I mean. If I and I mean no one knows how popular. This is going to be here unpopular it's going to be right ordinarily say okay. Markovic Sally. Is in a increasingly purple me being increasingly blue state right. She has failed to differentiate herself from trump and that's why she's losing right. Eight or nine points and some of these polls. And now they agree opportunity do it but she's I think RD come out and said she supports. We are to the nominee is right with supports the process at least right because it is the Supreme Court I think it is something that like. Actually Republicans deeply believe in like we're Gannett just get all types of huge victories over this for many decades. As result of confirming this person and so maybe that outweighs there. Elect oral incentives. Maybe they think there is nutria the motivate the base right. Committee I mean octopus raisers like this is something the party we'd be willing to make sacrifices for. And so they will vote get a because they can get it they want it and they waited pay some type of political price right. Steve presents no we don't read our note we'd erratic baby's daddy are right that yeah. Sarah and Mike at do you have thoughts about the process going forward. And any possible defections as and he mentioned or things that Democrats to do too complicated Arabs are the process. I mean you know other people said this I think that's right. Democrats only leverage here really because I don't think there'll be enough defections. Test to to really get in the way of Republicans doing this although you know we'll wait and see. But Democrats only real leverage here is the possibility that they will win the senate. In the vampire. And then. You know there'll be retribution if Republicans push this through its own Democrats. Act justices to the court right they could get rid of the filibuster they cut it to all kinds of the structural names. Two. Try to it from the democratic point of view even things out in response to what Democrats see as norm great game. Blues. But captain norm breaking I'm accident attribute that to Democrats. I'm it McConnell and senate Republicans. That's really I think that's there on the there on the leverage there and they couldn't. Make or very compelling argument. And and convince the American people that missing masters wrong. But you know what but it's at about this skewed the senate is right. Confirming Cavanaugh was with net unpopular. Senate Republicans did that they kept they kept chamber right. This. I would expect this to be net unpopular will weak currency and yet to style not have. There's not a one to one. Relationship between that and the electoral fact I would expect him to effect be muted and perhaps even. Reverse by eyes at the state level you know a lot of that while a close races right now are in red states. Susan there's a couple things here that I think make it really. Hard to understand how the process would go in the sense that. To some extent I think trump had its. The desire not to fill the seat before the election to strike up base but on the other hand you know one of the lasting legacies of the trap administration at least on the federal. Judiciary level. We'll be how many justices he has appointed and then of course you know the two on the Supreme Court as well of course it should Cavanaugh and this would be a third. And as Perry bacon wrote inner peace for the site last evening you know a 63 conservative majority on the court that would be huge and shifting. In America to the rate the fact that in strict set on her death that that Herman's fervent wish is that she will not be replaced until a new president essence is something that Democrats will latch on to hear in the upcoming. Paddle and processed to nominate someone to the court. Plus they can point to what happened in 26 teen with republicans' refusal to move Ford on merit. Marik garlands nomination. But. What I think is complicated in this is it's not clear cuts and the if Republicans moves really fast on this nomination and it would be incredibly fast for 46 days away at the election as a Friday on average last fifty days. Setting aside you know what point we are in the election cycle. I'm not sure if Republicans want to get someone in immediately and then may be risked voter turnout being depressed rate if you get the court to 63 majority. As a Republican voter to have the same incentive to turn out I'm not sure Republicans will want to necessarily move this vastly on this as we think. So I want to unpack that a little bit and I think here we're getting more in tune the electoral implications. Which is using just its Arafat if trump really wanted to Q you know boost turnout amongst. Conservatives. He would meet the whole nominate somebody holding hearings before Election Day but hold off on actually confirming than in order to kind of dingle it as a prize for republic ten. Voters. Are sizzle too cute by half. At slogan OK tell us why so one problem is. OK let's say. Like personal if you connect confirm. Is a plan that you would dangle it but that only confirm with the GOP keeps the senate. Or you can for no matter what it right. Yeah that's. Been the doesn't change anything the audit for changes like a tape let's say that. In the hearings this nominee is. Moderately unpopular moderately popular or whatever right. Then comes November 3 and Democrats win a big sweep they win the presidency they when the senate. They win the keep the house expand their majority right. See just who this kind of national mandate on among many other things the Supreme Court. And then you kind of nominate somebody anyway in when duck session. I mean that would seem to give Democrats a lot more leverage for like that it this let's. Expand. The court let's add Puerto Rico and Washington DC let's and any type a filibuster whatsoever. When that plays out the longer Democrats are now I don't know right but like. It seems. Mikey Mikey paying a price electorally in the long run maybe it's two years we've the next Richardson who cares right but if you get a verdict from the public and the public kind of most Democrats in office and then you nominate someone anyway right I mean in some ways it's like. Splitting the baby in ways that I don't understand. Why that's considered. Like such a Smart strategy really not a. The only way you could really make it out lied issue is to genuinely be it's a genuinely say. War I don't think that's too close to an election I'm gonna wait until after the election. To nominate and confirm some mine. Not only after the election but after new senate is is seated. And say American public gets up to you do if you want me president trump. Have my choice of justices. Keep Republicans in control percent at. Does that do that sounds farcical just saying it at out loud right. Right and so and it's kind of an I mean I should point out trump has said on Twitter. Will or recording this that he wants to move ahead forward now. OK so unprecedented dots. So let's assume that that is what happens Republicans move forward with nominating and confirming some liner before election and there is now 863. Conservative majority on the Supreme Court. How does that affect the orchard. And let me just put us out there it seemed like in 2016. That. You know a Supreme Court seat being on the ballot some suggest that helped. Republicans helped motivate religious conservatives who didn't necessarily like president trump. Then it 2018. We saw where is Kavanagh that the race seemed to tighten someone at least Wear red states became red or Blue States became Leuer. And Republicans. Enhanced never authority in the senate. So going into you know. This process now should we expect that I kind of raucous confirmation process will help Republicans I think. Well one. Maybe nature it is but we would look we should wait and see if that is the answer right what was who wait for polling. See how this all plays out weight not only for pulling on on the confirmation process on whoever gets nominated. I'm. But for pulling in in all the senate races and the president's race to see how at all. Filters entity into the electoral. Sphere what I would say though is. The idea that. Why not having a a hugely partisan fine. Right before the election. Helps trump. And Republicans. Does make a fair amount of sense to me. Not because that fight in an app itself is particularly GOP friendly. But more that that status quo before the fight landed on on the scene. Was particularly not GOP front. In other words. Had had this Supreme Court seat not opened up. Before it opened up we were in it democratic leaning environment Biden had. Eight lead nationally. Over trump animist swing states. Man Republican control of the senate was in doubt our forecast it you know. Democrats at slight slight favorites to take control of the chamber and so it's just like the question. If you were a Democrat on Thursday. You were feeling. OK to pretty good about. About that 120 election. Now if nothing else there's this huge question mark right so that's it's it's bad for Democrats. And part of that it removes emphasis from Covert which is what the election with the so we'll have to see if this if this proves to be true but that's another part of this that I do think makes a fair amount cents which is just that. Trump's mishandling of coat dead. You know the last attention act acts the better for trump that. Isn't this week cute. Pundit. I mean let let people. Think about all the things that are different your life right now because of coated. Right. People you know have gotten governor died from coated right it's what some media narrative focus that matters right it's not some political cheaper say it's an issue having to view it. Your everyday life right select whether. You know it's not clear to me if the New York Times right or corporate circles about coping. That that really kind of like organic over thing I'd forgotten about that I forgot even though I can't some like it to school that the country. He will not gonna my office can't go to. A football game right I just forgot about that coded thing you know I mean. I don't know that's true but also a but. I don't know that's that that's the right answer I don't know but I let it. I on the margins I think it could have sheer but you're right that it's not like people the oh bewilderment. Take 2016 or 2018 as examples where we actually house polling data rate may be the most prominent example would be 2018. Where it seems to tighten races. In red states where Democrats Warren comments and ultimately a lot of them lost. A lot of the seats the Democrats are trying to pick up this time around in Republican states more last Iowa North Carolina. Texas even Montana. What do you you know witnesses. Fiercely partisan fight that forces people into their corners to some extent what that's how the same practice 2018. I mean that is at least somewhat of a data data driven. Understand what's going. Yeah I mean. Yet it's not a bad prior. Other than that isn't as red as it was in 28 team in creating it races in. North Dakota and West Virginia. And Indiana and please that are really Missouri they're really quite red. This year it's more in places that are purple red. Like I don't think this is an easy issue for Steve Bullock who has Democrat in Montana. You know what season it really red states and South Carolina although Lindsey Graham has. Kind of poignantly at some points and even you can hold this against me right but I would not do this if there situation were reversed and obviously these he's from the unit. Go ahead and be hypocritical. Let's agree how to restart the site. I don't know I mean in. Hypocrisy it's. You know everywhere most of secrecy it's hypocritical outrage not to look at Packers. Well let's then arresting is largely a five Supreme Court appointees as something that really motivates the GOP base and while that still true lake Democrats have moved a lot in recent years in terms of citing it as an important issue. And it's neat sent but bracken a forget that co that's happening but I was surprised that pew found this year at the third most important issue was the Supreme Court among Americans and so obviously now what this new. Development I think that's gonna change and make it even more important but it's still really muddy and unclear to me how some of the camps. Because both parties are increasingly notified the mood at dated. By the Supreme Court. Howell moving quickly on the appointment if feared the GOP will shift. Support and drive turnout vs what that would mean for Democrats. Particularly in control of the senate and I mean. As for saying it's a purple to more purple maps this year but you know. Will this help Gardner who's under water in the polls with this help make Sally I. I don't I don't now. What about groups that haven't yet been activated liked it it doesn't have the potential to turn now on voters into voters and who would those people be. I'm very skeptical about that. Like that it would. Get a whole group of people off the sidelines. I don't know who that would be bright. You know you couldn't go ahead and it. Yeah I mean an election when. Turnout is thought to be so high anyway right. You know we're gonna probably had record for Internet anyway we had Kris turner mid term. You know IE you. Suppose if you look if you compare registered voter and likely voter polls. So when people are registered to vote. But did not screen is likely to vote. The likely voters are tiny bit more Republican maybe half a point to point. So in theory of turnout. Increased its and that metric and it's a tiny bickered for Democrats but not like huge split but you know there is pulling the Democrats. Actually dockets are the Supreme Court to be more important issue the Republicans do. Just if you're kind of party. Maxed out right like and which groups are Democrats. Struggling to turnout might actually be. Black and Hispanic Democrats that would want to see what those groups think about. Supreme Court. Maybe helped maybe it helps a little bit Democrats with. Bernie he. Leaning younger voters. Younger women he room and considered out I don't think they were that many of those people and like let's Republicans and I think there were very many like evangelicals who are Gannett. Really sit the election out necessarily. So I don't think it's more the effect. On swing voters. So as you register a bunch of times as far as the politics are concerned we're gonna after the NC even though we've offered some hypotheses here. I think the last question and maybe the biggest question is. How this changes the ideological makeup of the court and I should mention an art. Legal reporter I mean it I was in devote. Is celebrating the holidays approach provides anybody who is celebrating the new year she would vapid as I'm sure soon. But Sarah what sense do we have you know who would become the new swing justice how the aid of a difference this would be for me the court. Grade so with Ginsberg accidents the reality is whether or not. They fill the seat. You now have a factory or six Teresa Democrats need two votes from the GOP appointed justices two Winick case there will be no more like one swing vote. If you know trump moves ahead with someone like bear it and canonized more so the median justice in the court. While Penn and Robertson some form in combination right. But that would mean then that that would be the new expectation going forward do Robertson Kavanagh aside with a flip pearl's on X issue. That could have real ramifications. For at the ECA which was supposed to go. Before the court again this fall. And you know they'll also be settling any voting rights disputes among the states and Roberts court. Has leaned more conservative on those rulings to date so that will be another open question as that sport here in the election and could have real. Ramifications particularly if we find ourselves and of bush V gore situation as in 2000. Yeah I mean this is probably. Actual. Date story coming out of this ram. Any if you look at any of the people trump is likely to nominate. They would represent a huge ideological swinging from. Ruth Bader Ginsburg it will be not on me. The you know one must liberal on the court when more conservative but it will be you know eight K. One of the the the liberal icons in the Supreme Court history. Time. Being taken away in and being replaced when it but I think we would expect to be. Eight there in the far right. M nominee I mean it if if only look at who trumpet nominated so far. He has not at all option any inclination Tico to moderate -- Rick but America our relentless blows more moderate. And even. If humans left center. So it'll be it'll be a huge swing. S air said. It could have. Huge consequences for health care for electoral law and what actually happens and 120. A portion. And I am a minister site that lists and lists and it and these are appointments for life so it's. It is the court was already somewhat out of whack with public opinion I am. We could be heading towards a situation where lets it Biden wins. And then there com. Let's say even take Democrats take dissent. You might end up in a world where where you this Supreme Court. You know someone in our meeting earlier today. Brought up you know the court purse at the 1930s. And their differences there but you could just have these. Eight pitched battles between. A really conservative court and they Martin left of center. Government I am. Addicted it'll be interesting but it's it's if you're conservative. Who cares about like jurisprudence in the US. If you are. You know. On the Internet minutes its you're very very it's it's it's quite it'll be quite chest. I do think it's worth keeping in mind that although. These issues may seem very abstract now a lot of things he'll be debated. Win a nominee is chosen will be. A Roe vs. Wade and the Affordable Care Act. And those are both issues I'm which. There is a chairman of electoral danger for Republicans it would seem right I mean I think you can absolutely credibly. Make the case that both those things will be under threat. If a conservative nominee is chosen and that's obviously kind of a feature not a bug if you're a conservative. But you know. What is a nominee's stance on Roe vs. Wade right if they are ambiguous and may be. Conservative legal scholars get cold feet right. Art well as I've said many times on this podcast we are going to watch for plays out and we walls podcasts emergency podcasts. It all goes where it's. Obviously it's been reared it's kind of been awhile since we've had an emergency podcast in some ways because most of point one it has to sit and emergencies have evolved in particular park pass. But I imagine that we will have more this points or will be back review this coming week but let's leave it there for now so I think you name. Thank you do it. Thank you Sarah think scale. And thank you might tanks does. My name is electorate Tony chow is in the virtual control room you can get in touch by emailing us at pod cast at 530 dot com. You can also courts treated us with any questions or. Comments if you're a fan of the show beavis or reading or review in the apple podcasts to work. Or tell someone about us holes or remember to subscribe to us and YouTube. Thanks for listening and wells news. And yeah. Yeah.

This transcript has been automatically generated and may not be 100% accurate.

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