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What the Devil won't tell you

McSally nose-dives into Supreme Court hypocrisy

GOP plan to defy voters' wishes could cost newbie senator her second race in two years

Martha McSally is about to figure out what "notorious" feels like and maybe not in a good way.

McSally, trailing in the polls behind Democrat Mark Kelly, quickly announced she'll support Donald Trump's appointment to replace Ruth Bader Ginsburg, who died Friday evening after a long bout of pancreatic cancer.

I smell something. Could it be doom?

Kelly issued a statement praising Ginsburg's legacy.

“I am in awe of how much Justice Ginsburg accomplished in her lifetime, leaving a legacy that impacted women’s rights and equal protection under the law for all Americans. Gabby and I are so sad tonight, as I know many Arizonans are — Justice Ginsburg will continue to be a role model for so many.”

Kyrsten Sinema, who beat McSally in 2018, seemed a bit self-referential in her tribute to Sine — I mean Ginsburg.

“Ruth Bader Ginsburg spent her life showing the world that focused, unflappable women—who refused to be outworked—could change America for the better. She inspired me and countless others, and I join all Arizonans and all Americans in gratitude for her leadership and service to our country.”

And McSally was pithy in memorializing Ginsburg.

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"Justice Ruth Bader Ginsburg broke barriers for all women. My prayers are with her family in this difficult time," she tweeted. Just 15 minutes later, she announced: "This U.S. Senate should vote on President Trump's next nominee for the U.S. Supreme Court."

Apparently, she's not much for the learning of stuff.

In 2018, McSally's support for Donald Trump and his Supreme Court pick Brett Kavanaugh cost her the election. So said her own campaign team with a post-mortem memo:

"A significant segment of the AZ GOP was hostile to the President,” it says. “In internal polling during the primary, President Trump never broke 80% favorability among Republican voters. A certain segment of AZ Republicans was outright hostile to President Trump, and was against the Kavanaugh appointment. This segment of moderate Republicans, especially woman [sic], proved very difficult to bring home to a Republican candidate that supported President Trump and the confirmation of Justice Kavanaugh.”

Does she think they'll like this pick more? Please don't say "But if it's a woman ..." This was the same logic party operatives tried to use to convince me Sarah Palin would attract Hillary Clinton voters in 2008 and win the election for John McCain.

Women don't just vote for estrogen.

See, I have a very simple theory of this election that explains Trump's consistently low approval, how the GOP has lost midterm elections in 2017, 2018 and 2019, while he's trailing now.

Voters don't like him, are sick of his shenanigans and just want him to go away. Republicans who are with him through each and every hairpin turn of mutable, situational ethics are going to be punished at the ballot box.

Standing up to him may be the only way for McSally to win. Maybe, just maybe, if Trump gets Untrumpy and fast, he can save himself. Instead, he's going full Trump and throwing in with Mitch McConnell to undo the McConnell Rule in spectacular fashion.

Suddenly, when a Supreme Court justice dies during an election year, the voters don't get to have their say on Election Day before the Senate fills the seat. Now, the voters must be defied, or at least ignored.

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You don't attempt slam a SCOTUS pick through the Senate days before an election if you think you are going to win. You do it because you think you are going to lose.

McSally keeps wrapping herself around Trump and expecting a different result. She danced with Trump right over the cliff in 2018, becoming the first Republican in 30 years to lose a U.S. Senate race in Arizona.

Why would she think this tango will save her? Her problem isn't her base. Her Real Clear Politics average support in recent polling stands at 43 percent. She's got the base. She's less than a point behind Trump as far as support numbers go. What neither of them have are the folks who won't drink the Kool Aid.

The thing that's damaging Trump and his ilk are the voters who expect a modicum of a moral compass. They would appreciate a set of values, please and thank you, that guide them. And ... heheheheh ... they already have the court majority.

A conscience would be nice to show. Even if McSally is acting on principle, it's clear from the tape and the public record the rest of her colleagues are not.

Principles are for suckers. Power is for killers.

The Eastasia problem

The Republicans made this vote tougher with a truism they set loose on the country four years ago. Now they say it's false.

George Orwell wrote "the past is alterable," and controlling the past is key to controlling the present. Welcome to the McConnell Rule.

This is how the Mitch McConnell announced the rule that now bears his name on Feb. 16, 2016, upon Justice Antonin Scalia’s death.

“The American people should have a voice in the selection of their next Supreme Court justice. Therefor this vacancy should not be filled until we have a new president.”

Love it or hate it, it’s simple. It’s clean. It’s to the point and the point is democracy. Who can be opposed to that? Barack Obama's nominee, eight months before the election, didn't get a hearing in McConnell's Senate.

Four years later, here's how McConnell is trying to alter history with a statement put out after Ginsburg's death.

“In the last midterm election before justice Scalia’s death in 2016, Americans elected a Republican majority because we pledged to check and balance the last days of a lame duck president’s second term. We kept our promise. Since the 1880s, no senate has confirmed an opposite party president’s supreme court nominee in a presidential election year.

By contrast, Americans reelected our senate majority in 2016 and expanded it in 2018 because we pledged to work with president Trump to work with President Trump and support his agenda, particularly his outstanding appointments to the federal judiciary. Once again, we will keep our promise.”

So now it involves underlines, diagrams, karats, parties of the fourth part, arrows reversing meanings and moons rising in Aquarius. It’s 102 Orwellian words.

The original rule McConnell set for his time leading the Senate made no mention of 1880 or split government. It just said let the people decide. Now he's dragging Rutherford B. Hayes into the discussion and citing 2014.

Orwellian tactics kind of need a Ministry of Truth to control information and Trump hasn't shut down CNN yet. We were there. It was four years ago. Video was rolling. Quotes were posted. You can't pretend you didn't say it. You can just choose to live by the moral imperative you established or choke on the hypocrisy.

Republicans have, in four years, gone from swearing a Supreme Court justice should never be replaced in an election year to trying slam one through closer to Election Day than any justice in history.

Someone find them a chiropractor because this kind of whiplash won't heal itself.

Go swinging or go down trying

McSally saying "no" to Trump here would be a great opportunity to prove some independence from the president. Conservatives already have a 5-4 majority, so she’s not flipping the balance of power.

And she’d be adhering to a Republican rule to let voters have a say. If the vote happens later than Oct. 7, it will be as voters in Arizona are casting ballots. Wait for them like Lindsay says.

She is again in the position where she's forced to decide between her base and every other voter in Arizona. Prior to Trump, it was big enough. Now the base appears insufficient.

Look, if Trump wins, then appoint the new justice in November. If Trump loses, he's setting the direction of the court for the next 20 years after voters repudiated him.

McSally can still try for the swing voters for a change, because this is her last chance to show she's not a Trump stooge.

Yes? No? She can be the one who makes or breaks the vote.

The decider

Here’s what I mean. Republicans hold a three-vote majority in the Senate. Trump and Mitch McConnell are intent on slamming through a new justice ahead of the election, because they think they are going to lose. They can lose three votes and hang on with a tie-breaking "aye" from Vice President Mike Pence. More than that and they got nothing.

Sen. Lisa Murkowski is a "no." By happenstance, she told Alaska Public Media on Friday she would not vote for a Supreme Court justice until after inauguration. This was hours before Ginsburg died. The woman won a write-in campaign as an independent. She can get away with just about anything.

Two years ago, South Carolina’s Lindsay Graham said no way would he appoint a justice in the last year of Trump’s first term. "Hold the tape," he said, as if to emphasize he meant it. He’s in a race that shouldn’t be as tight as it is and Graham’s ever-changing political brand is costing him. He’s on the record. How do you walk that back?

Maine Sen. Susan Collins is facing all sorts of blow-back in a blue state for supporting Brett Kavanaugh in 2018. She’s getting no end of grief and trailing in an election for the first time because she’s seen as a toadie of Donald John Trump. She apparently told Jonathan Martin of the New York Times that she wouldn’t confirm a justice in October. “It’s just too close,” he quotes her as saying.

Let's assume they aren't all going to pivot 180s, which is ... iffy. Should they all flip-flop, then they should each fire their communications directors and refer all press calls to the White House. Trump will tell them what they think.

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If they hold true to their word, that’s a 50-50 vote, with Vice President Mike Pence breaking a tie. So McSally is ready to be that 50th vote.

National detour

Gentle, national aside:

How this goes down locally, will have a lot to do with how it plays nationally and the national terrain is terrible. There are quotes galore out there with Republican senators not only passionately defending the voters right to set the court's course but many also name-checked Joseph Robinette Biden, Jr. It's the sort of thing that makes political ad people think "we didn't get this lucky."

Republicans in 2016 thought they'd get tricky and picked up a Biden throwaway line from 1992 saying maybe if a Supreme Court nominee opens in the election year, it shouldn't be filled. So a host of R's are on the record saying: "Joe Biden is right. The people should decide when a court vacancy comes up in an election year."

To illustrate what an ambush they are walking into, this is what North Carolina's Thom Tillis said on the Senate floor.

“Vice President Biden’s remarks may have been voiced in 1992, but they are entirely applicable to 2016. The campaign is already under way. It is essential to the institution of the Senate and to the very health of our republic to not launch our nation into a partisan, divisive confirmation battle during the very same time the American people are casting their ballots to elect our next president.”

I guess the health of our republic doesn't matter so much anymore.

Mother Jones put together a list of these kinds of quotes that provides terrible context for McSally. This of course assumes that Democrats can take advantage and do something other than run on health care — the only thing the party ever wants to run on.

McSally doesn't have tape or quotes on Garland but her party is set up to look like wankers and hypocrites. Those low-information voters tend to wrap whole arguments up in a bundle rather than parsing. McSally will be "with stupid."

Voters are used to senators acting slimy 71 months out of 72. Just don't do it the last month before an election. The Republicans are threatening to be this wet and slippery as voters fill out their early ballots. And McSally may be the pivotal senator.

You gotta throw swing voters a bone, Martha. Give them some reason to vote for you. Voters don't tend to re-elect eels or similarly slimy creatures.

Yeah, Mark Kelly is feeling fluffy, frisky and ready to fetch himself a desk in the Dirksen Senate Office Building.

Kelly in early?

Kelly brings me to apocalyptic future where a lame-duck Republican majority defeated and a president who lost teaming up to alter the course of the court after the election but before the Democrats take over.

Kelly may be able to help thwart that if he wins. Kelly could be sworn in as soon as the Arizona vote is officially counted because he would be finishing off John McCain’s term. The Arizona Republic ran a story quoting Republicans and Democratic election lawyers about this not realizing that the tomfoolery he could help prevent would be a lame duck appointment of a Supreme Court justice.

Were he to win, Kelly would be eligible to take office as soon as Arizona's vote count is canvassed (that's electionese for "rubber-stamped as certified") on Nov. 30th.

That would take the outgoing Senate's majority down to 52 votes.

"In the ordinary course, in an ordinary Senate election, the winner of the election would begin his or her term until January. But in this context, a special election to fill a vacancy in a pending term ... the winner could be sworn in and seated earlier than he or she otherwise would be if this were a regular election," as the Republic framed it.

Jersey confessions

Former New Jersey Gov. Chris Christie gave another reason on NBC’s live coverage of Ginsburg’s death. He said that the election would almost certainly be decided by the U.S. Supreme Court and an even number of judges would cause a nightmare.

Let’s set aside how they’ll have no problem with five conservatives and three liberals if Biden is inaugurated and McConnell still runs a Republican Senate.

The argument passes the ear test. Realize it’s also a confession.

No matter what Trump might lose by, this judge would be there to reappoint him to a second term with an opinion that echoes whatever looniness Trump might claim. I just wrote that this was impossible. It would never happen. It’s because I don’t like a lot of Roberts’ rulings, but I trust him not to be freaking crazy. But he might not be the swing vote if Trump fills this position. Could a hardcore conservative majority erase 1 million votes across four swing states to hand Trump the election? It’s possible.

But the chicanery needn’t be that involved.

In the same column, I pointed out how Trump can just walk through a wide open door to reverse the apparent results of an election. He can ask Legislatures to nullify the results of their state’s popular vote and award Trump the state’s electoral votes. What’s stopped them all these years? Democratic norms. How are they holding up under the Donald?

As it stands now, the prevailing constitutional wisdom stipulates legislatures are completely free to set aside the popular vote. That’s not to say that if indulged the freedom won’t be mugged by legal challenges after the election. And there’s Trump’s new justice ready to affirm or reverse.

Might want to ask McSally about that before voting.

Raising Arizona

That sound you are hearing is the looking glass crashing behind you.

If Trump and McConnell pull this off, I would be shocked if Democrats take the U.S. Senate and the White House that they wouldn’t move to fix it. A year ago, I would have thought it unlikely they end the filibuster and packing the court. But McConnell will have stolen two seats on the court and even Democrats would grow something resembling a backbone.

Just 24 hours ago, I didn’t know how this election could have gotten any more real.

But it just did.

Ruth Bader Ginsburg was a legal giant — up there with Clarence Darrow, Thurgood Marshall, Robert Jackson and even her old friend Scalia. Great minds make good minds smarter. She was one of those and a tireless champion for what equal protection under the law could mean to half the population.

What happens next will say a lot about what the law looks like and what it's used for in coming decades. So we gotta talk politics.

Technically, McSally just called for a vote and isn't on the record supporting the nominee yet. So maybe there's still time if she thinks it will cost her another Senate seat.

If McSally were allowed to be the McSally who represented Southern Arizona during the last two years of Obama's time in office, she'd be five points ahead and thinking about national office. I've been operating under the assumption that was the real McSally and this Trumpistani candidate is just her being whom she thinks she has to be. I might have had it reversed.

How much pressure she feels from Arizonans will go a lot to determine her future, the Senate's, the Oval Office's and how the law interacts with all of us.

How do you like this swing-state living, Arizona? Suddenly we have the power to determine the future of the world.

Blake Morlock is a journalist who has spent 20 years covering government in Arizona and also worked in Democratic political communications. Now he’s telling you things that the Devil won’t.

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2 comments on this story

Sep 21, 2020, 2:05 pm
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While we now live in California, we still own property in Tucson, and I read the Sentinel with regularity, Just wanted to share with my pals in Tucson that Californians are supporting Mark Kelly in unexpected numbers. Both my wife and I have donated to his campaign. He will win I am confident, and it will make being a Winter Visitor all the more fun!

Sep 21, 2020, 1:52 pm
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It looks to me as if Mr Kelly is on track to win this race. As you say, Ms McSally is doing herself no good by following the McConnell hypocritical juggernaut. If she changes her mind it it can only be that she has decided to do the right thing (not that any evidence exists that she ever does the right thing), because I don’t think it would improve her chances of winning this election and I assume she know this.

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National Portrait Gallery

Ruth Bader Ginsburg's death leaves a hole in the Supreme Court and a whole lotta trouble for Martha McSally. (Ruth Bader Ginsburg in a detail from the painting 'The Four Justices,' by Nelson Shanks, which depicts the first four women who have served as justices of the U.S. Supreme Court and hangs in the National Portrait Gallery.)


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