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Nina Totenberg

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Nina Totenberg

Second Interview with an NPR Legal Affairs Correspondent

Nina Totenberg is a legal affairs correspondent for NPR. She has reported on the U.S. Supreme Court for more than 40 years and notably broke the story about Anita Hill’s allegations of sexual harassment by then-Supreme Court nominee Clarence Thomas.

This interview was conducted by FRONTLINE’s Jim Gilmore on October 27, 2020. It has been edited for clarity and length. You can see an earlier interview with Nina Totenberg here.

This interview appears in:

Supreme Revenge

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The Death of Ruth Bader Ginsburg

So let's start, if we can, with the loss of Ruth Bader Ginsburg.Talk a little bit about, certainly during the time of Trump, her health was always a concern, and it made the Democrats a little nervous, I think.Talk a little bit about how she persevered, how the Democrats were nervous about it during the years that Trump has been here.

Well, I think the Democrats were nervous about it, but not terribly nervous about it, until the end of 2018, when she had surgery for lung cancer.That was her fourth, I guess, cancer, maybe third; I lost track.But we had all, in the outside world, sort of gotten used to the fact that she was such a conqueror of this disease, that when it turned out that it was lung cancer and that it was a successful operation, I think everybody was very nervous but very hopeful that she would—it would be many more years before she had another bout, which was typical.She had one in '99; she had one in 20—2009, and then again in—at the end of 2018.

But, you know, it turned out to be the beginning of the end, I think, for her, although she didn't know it then, and I don't think the rest of us fully understood that then.

Why hadn't she retired during the Obama years?I know there's been a lot of talk about people suggesting to her that it might be something that she should consider.What was the real reason that she didn't?

I don't think there was a real reason.I think she was, in 2013, when I think the Obamaites might have thought, gee, well, will she do this, 2013 or even '14, she was at the top of her game.She might have been 79 or 80 years old, but she was really at the top of her game and able to be very persuasive on the court and to win some victories that other people might not have pulled out of the hat.In addition to that, she didn't know when Anthony Kennedy was going to retire, and it certainly seemed at that point as if he were in it for quite a while.And lastly, I think she really did think that there was a good chance that Hillary Clinton would become president, and she wanted to give a chance to the first woman president to name her replacement.

Did she ever have any regrets about that decision, even in the later weeks?

You know, Ruth Ginsburg did not do regrets.She did not do looking back.She did moving forward.And until I would say, maybe, a week before her death, I don't think she really—I think she thought she could somehow make it.And that just wasn't in her nature, and I never asked her if she had any regrets.

Her death, of course, made huge reverberations in the world because of the loss of someone who was so loved, but also politically it was a huge change.So what was the significance of her death, and how did it affect the conversation in Washington?

Well, I suppose in another time, we would have all just waited for the results of the election, and the next president would have filled the vacancy.But this is not like other times, and the country's polarized.The president had campaigned on making the Supreme Court his, and that is not an overstatement since he kept saying—referring to it as the court, as kind of betraying him when it didn't side with him in some cases, although it sided with him in many cases.And Mitch McConnell had for decades—I think, since, really, since he was a college student—seen the remaking of the federal judiciary as his single most important mission.And this was an opportunity that neither he nor President Trump was likely to pass up.

We'll talk more about McConnell in detail in one second.One last thing about her death.The memorials that took place, the historic fact that she was lying in state in the Capitol Building, any significance in the fact that Mitch McConnell was not there, that other Republicans were not there?

I thought it was incredibly rude, I guess is the right word.I mean, this is something that you do in Congress and in Washington.You pay respects to somebody who you disagree with who has died, who was an important justice.And she was the first woman and the first Jew to ever lie in state at the Capitol, and to not show up was remarkable, I guess.Maybe not remarkable in the greater scheme of things.I'm really—I was really quite surprised.It seemed like a small thing to do.And, you know, I don't quite know what to make of it; it's so out of the norm.But we have a lot of the out-of-the-norm these days.

The Nomination of Amy Coney Barrett

The nomination of Judge Barrett—McConnell's calculation about it, the fact that he did it so quickly—what was his reasoning behind it?What was his argument for doing what he did?

Well, first of all, the president made the decision to nominate her, and he had told people that he was keeping her in abeyance for the Ginsburg seat, should [Ginsburg] retire or die.And I, you know, there's not much doubt about that she was ready, willing and able, and that he had—they had done the screening for her ahead of time.And in fact, I think the president offered her the job the day after—something like the day after Ginsburg died.And they were already making plans, public plans before she was buried, which was a few days later than they thought.They thought—she died on a Friday and was buried on a Tuesday, and in between, they couldn't wait, because they really wanted to jam this through as fast as they could.… They knew that the Democrats didn't have any power to do anything about it, but they knew that the longer they waited, the more possibilities there were.I don't, in hindsight, doing the reporting that I was doing, I don't think there was ever anybody else seriously in the mix.It was always going to be Amy Coney Barrett.The vice president knew her; he knew a lot about her.She's from Indiana.McConnell knew about her.They knew she was every bit as conservative as they wanted, and one might even say maybe more conservative, ultimately, if we look 10 years down the road; one doesn't know.And this was—she was their person, and they were going to do it.

We've been told that Trump found out about it right after he walked off the stage giving a campaign speech. … And he immediately pushed Barrett and pushed her really hard.And he had said something like, "Well, there's a couple other names, but I'll consider it."Do you think there's any truth to that?And if that's the case, why was McConnell specifically pushing her so hard?

Well, because she had the backing of all the Federalist Society types, the Heritage Foundation, the social conservatives who were so important to the base of the Republican Party.She was, I think, probably their favorite and their most—they felt most comfortable with her.They didn't have any doubts that she'd be sort of a younger and female version, to some extent, of Clarence Thomas.

During the hearings for Barrett, [Senator Lindsey] Graham gave his opening speech or statement, and he basically stated that: "We know that the Republicans will vote for this nominee. The Democrats will all vote against her.We're basically here to push her through."Did that seem—how do you view that? …

Well, in fairness, you know, these hearings are always a bit of a Kabuki dance.I would urge people to go back and read Justice Ginsburg's confirmation hearing, because even though she always is cited as the person who set the standard for not answering any questions about cases that might come before the court, it's really quite surprising how many questions she did answer, including her view on abortion rights; on reproductive rights, which she was quite clear about; and many other things, including, I don't know, there was an Indian Affairs issue that she analyzed as she would, she said, on the court.And this was at least, I would say, 50% a conversation between the nominee and the committee, and there was some of that in [Stephen] Breyer's and some of that in other confirmation hearings up until, you know—but at each turn, as we came to the moment of the Republican Party being so devoted to the idea of a very conservative Supreme Court, and Democrats trying to make sure that that didn't happen, increasingly these hearings became more and more of a Kabuki dance.It wasn't just the [Robert] Bork nomination way back in the '80s, because after that we had confirmation hearings, as I said, for Ginsburg, for [David] Souter, for, in fact, Thomas, for Kennedy, for Breyer.And most of those were—the nominees were pretty responsive, not entirely responsive.But once we got up to the Obama administration, when only a handful of Republicans voted for either [Elena] Kagan or [Sonia] Sotomayor, those hearings became increasingly a defensive sort of operation.And they were that way, also, I would have to say, in the [Samuel] Alito hearings and to some extent the [John] Roberts hearings, but Roberts was pretty artful about answering and sometimes not answering.But at least it was—had the appearance of a real hearing.

By the time we got into the Obama administration, those hearings were not real.And by the time we got to Barrett, who was—whose hearings were only 16 days after her nomination, it was a charade.I mean, she didn't answer anything.It was a bit of a charade with [Neil] Gorsuch and [Brett] Kavanaugh, too.There is a study that was done I think shortly after the Gorsuch hearings.A couple of professors at the University of Georgia did a study of responsiveness at confirmation hearings, and they found the least responsive nominee was Abe Fortas, when he was nominated, I think, to be chief justice, that he told almost nothing.But Gorsuch came in second, and Gorsuch looked responsive compared to Amy Coney Barrett.She just had a one-line: "I can't comment on that."And that included, you know, whether she thinks there is such a thing as climate change, whether she had ever read a study about racism in America or books that have won the Pulitzer Prize about racism in the criminal justice system.I mean, there was nothing that she committed herself to.

So try as they might, the Democrats really failed to elicit any information from her that would give you any sense of who she would be as a justice, although her refusal in itself, I guess, tells you as much as anything else.

For the nomination confirmation of a judge that was going to make such—you put in the past—a sea change, such a serious decision for such an important post, when you look at that, the fact that this was such a Kabuki dance as such, as you define it, how surprising is that, and what are the consequences of that?

Well, I think it was Senator [Richard] Durbin who said, at one point, "I don't know what the purpose of these hearings is anymore."And I don't either, as somebody who sits and has watched them.I've actually covered—I actually counted it finally—not all of these people made it to a confirmation hearing, but I have covered 28 nominees to the United States Supreme Court, and I have never seen anything like this one, in addition to the fact that, as I said, the hearings took place 16 days after the nomination.Now, just to read everything she's written or to look for it, to see if she's left anything out, takes more than that.I did the numbers.I ran the numbers, and although my math is not precise, I did it multiple times to make sure I was accurate.So this time there were 16 days between nomination and hearing beginning, and the average for the current eight justices now sitting on the United States Supreme Court was 56 days.That tells you that all they wanted to do was go through the motions.

Now, I understand.Presidents would love to do that with every nomination for everything important, especially the Supreme Court.But there's a reason for a process that is somewhat lengthy, to give both sides that chance to find out if there's anything wrong, to find out about this nominee, to read all of her—or his, in some cases—material, to look for material that may be missing.I don't think that anybody had any worries that Amy Coney Barrett was going to have a sexual harassment charge against her, but there are other things to worry about when you're confirming a Supreme Court justice, and this is your last chance.

So when Senator [Sheldon] Whitehouse said that the Republicans will "rue the day," that this was just proof of the fact that it's all come down to "because we can," was he right?

I think it's "because we can."And I would expect that the Democrats will respond in kind, should they get a chance to make nominations to the Supreme Court.And you're already seeing things that I—that were really not reasonable.You know, it was a sort of an academic game to discuss adding justices to the court or putting term limits on the court.It is no longer an academic game; it is a political pressure point that's being leveraged against Biden.And it's, you know, he's said that he would—he would create this commission to study the whole issue, which is of course a bit of a punt, because politically it's a crazy thing for him to do, maybe not in the long run, but in the short run.To get a major change to the Supreme Court would mean he'd have to use every ounce of political capital that he has to get that done, and gone would be dealing with COVID and all the problems that, you know, getting everybody together on that, and gone would be economic leverage to try to goose the economy back into a good place and to get people back to work.Gone would be, you know, climate change.Gone would be lots of things that are important to his constituency.It's true that down the line a conservative Supreme Court might even strike down some of those measures, but until you get that proof of the pudding, it's a little hard to make the case.

… The irony of Senator Whitehouse's statement when compared to—how history is repeating itself, when compared to McConnell's statement after Bork, where he basically tells the Democrats, "You'll rue the day for the treatment of this justice."… And is that just the way the history of these debates, over who shall take these powerful positions, has been?

Well, you can argue this round-or-flat.There have been long periods of time in American history where there have been bitter battles over the Supreme Court.They have rarely been as partisan as—down the line partisan as they are now today.They were over, you know, they might have been North versus South, but—and slavery versus anti-slavery, but they were not necessarily just one party against another.And even Roosevelt's court-packing plan was killed; it could not have been killed by Republicans only.It was killed largely by conservative Democrats who were opposed to it. …

And this is very sad for the court, because what the Senate did, the Senate majority did, certainly may get the results that Mitch McConnell and Josh Hawley and Tom Cotton want, but it could do it at the price of the court as an institution.Chief Justice [William] Rehnquist famously said that the jewel in the crown of American democracy is the independent judiciary.And if the public comes to view it as a purely partisan institution—and we're getting close to that now—the loser will be all of us.

McConnell’s Long Game on the Courts

… Did Barrett's confirmation cement the legacy of McConnell, the thing that he's been working for, for decades?

Yes.I think, you know, he is a brilliant strategist, and he has delivered the goods, even to a president I think he finds extremely difficult to deal with, because he's negotiated deals after deals after deals, for example, on DACA [Deferred Action for Childhood Arrivals], on the "Dreamers," and then Trump would pull a rug out from underneath him.So he knows he can't do a deal unless he has the president on board, and that even if he does, the president may renege on the deal, which may account for part of the reason that we don't have a COVID relief bill at the time we're now speaking.

But, you know, I think he is, you know, definitely—he is—the only person I can compare him to is Lyndon Johnson.I mean, they were both—they are both and were both brilliant strategists who understood all the pressure points of politics, used them ruthlessly, both of them, and got what they wanted.Perhaps the only difference is that—at least, that Johnson, for all his flaws, left something of a legacy of, for example, racial progress in the United States, and managed to enact, even before he was president, some civil rights laws.And I'm not sure what McConnell's legacy will be. …

I don't know what he ultimately wants, what's most important to him about the Republican agenda.And we're going to see.I mean, traditionally, a conservative judge was a judge that deferred to Congress.And you heard Judge Barrett, now Justice Barrett, explain that in her confirmation hearing, that you're supposed to put aside your personal beliefs and you're supposed to defer to the policymakers.That said, she has written extremely critically about the Supreme Court's decisions upholding the Affordable Care Act, which, after all, was a series of policy choices by Congress.

Also, I think, connected to that is what he reveals in that speech he gave on the Senate floor last Sunday, where he basically said that legislative achievements are ephemeral, and that what they've accomplished, as he's looking at his fellow Republicans, what they have accomplished is something that will last longer.… And how does that define the fact that he's always seen this as the Holy Grail, that this will last for decades, and the Democrats will have to deal with a very conservative court for decades and decades? …What was your take of that McConnell speech on Sunday? …

I think, really, what he was saying is, we've had to live with a bunch of liberal and so-called moderate Republican Supreme Court justices for decades doing things we didn't like, and now we have our crowd in, and we're going to do—and they will do to them, the "them" here being moderate Republicans and Democrats, what we've had done to us for years; that we have wrested control of the Supreme Court from the mushy middle and the left. …

Justice Barrett’s Swearing-In Ceremony

Talk a little bit about the swearing-in ceremony.How do you view what we all watched: the glamor of it, the music playing, and the president walking out with Thomas and with Barrett?Was it all just a political show?What was it?What do you think was important in what took place that night and what we should understand about it?

Well, I think it's pretty clear that President Trump views himself as a showman.I mean, I think probably the worst thing that happened to him during the debates was that when he canceled the middle debate, that Biden got higher ratings than he did.He loves a show.He knows how to put on a show.I thought it was pretty interesting that the chief justice and the other members of the court were not there.Not only, you know, was the first such show, the nomination, a superspreader event, it turned out, but the chief justice has been very vigilant about trying to keep the court out of the political maelstrom.And he, I think, probably understood that this was a political show, just eight days before the election, and he wasn't going to be part of it.

And then, of course, the next day, he swore in Justice Barrett with the judicial oath, and she is now working in the chambers that are hers that belonged to the late Justice Ruth Bader Ginsburg.I'm very confident that she may be a very popular justice, but she will be very different from Justice Ginsburg.

Partisan Division and the Court

… The vote itself in Congress for Barrett, the significance of how much down-the-line between Democrat and Republican it was.What is the significance, the long-term damage or effect on the system?

Well, I don't know, but Republicans had better pray that the Democrats aren't in power the next time there's a vacancy close to an election.But it was, you know, it was—I think for the Democrats, it was an easy vote.The public overwhelmingly thought it was not right to do this with the election already going on.There had already been millions of people voting.And this was, you know, they had this vote eight days before the election.This was—this is—this is a thumb in the eye of the American public, to say, "We don't trust you … to do this, that we can do this after the election."

So for the Democrats, I think it was an easy vote.For a few Republicans, it probably was a hard vote, but they really didn't have any choice.First of all, they need McConnell's support to pour millions and millions of dollars into highly contested election contests.And I don't think—I think that they couldn't defy him on this.I'm sure there were people who did not think this was really the right way to do it, but the Republican Party is in lockstep, at the moment, with Trump and McConnell. …

So looking into the future, if Biden wins the presidency and the Democrats win the Senate, what does he face?How will he have to deal with this new Supreme Court?What will the battles be?What might the consequences be?

Well, you know, any complicated piece of legislation will likely have provisions that end up in front of the Supreme Court.So any complicated piece of legislation to deal with climate change already has made it to the Supreme Court and been watered down by a previously not-6-3 conservative majority.Any big economic legislation or health care legislation, a public option, for example—I don't know what the grounds will be, but there will be challenges.And there are forces within the United States now, on the left and the right, that will always challenge these kinds of things and be successful at least some of the time.I think, at the moment, what we see is far greater success from sort of the business community.But there is, you know—there's no way to tell what is going to be the next battle around the corner.But there always will be one or two or 10, and this court will be definitely, I think, on the side of—on one side that is the very conservative side.Whether the question is religion or guns or reproductive rights or privacy or presidential powers or the ability to fire people in the federal government without having any reason, all of those things—the independence of the Justice Department, the FBI, all of those things are, you know—Biden may be able to rebuild trust in some of these institutions, but it will be precarious, I think, until we get through another 20 years to sort of have a more settled landscape.

The Changing Composition of the Court

… You look back at Bork, and Biden was head of the committee when the Bork hearings happened, and this big intellectual discussion took place about what Bork believed in, and eventually Bork was defeated because of his overly conservative points of view.Walking in as president, if he wins—walking in as president, he now walks into a presidency with a Supreme Court which is more conservative than it's been since, when, the '30s, the '40s, whatever.How amazing is that?How interesting is that?How ironic is that, the situation that Biden will find himself in, the day he walks into the White House in January?

Well, it's true.But, you know, if Bork had been on the court, the court likely would have been far more conservative far more quickly.So, you know, at that point, Biden was worried about tipping the balance and making a sea change at the court.He managed to have five days of testimony from Bork, who sort of proved the point, and therefore was defeated not by a small margin but by, I think, the largest—if not one of the largest—margins in history.The White House actually wanted him to just withdraw at the end, because they knew they didn't have the votes.And in fact, six Republicans voted against him.

But today, it's not going to be a 5-4 court.It's going to be a 6-3 court.And if John Roberts wants to be a player on the court, he's probably going to move back in a much more conservative direction.And that, I think—it will probably give him heartburn, because he knows what the potential consequences of that are, which is that every yin has a yang.And the yang for this is to actually change the composition of the court, change the number of justices.That's the only way you can do this quickly without a constitutional amendment, and clearly without a constitutional amendment.It's been done six times before.So—but it hasn't happened in, you know, well over 100 years.

And certainly Justice Ginsburg didn't think it was a good idea.You know, her view was, well, so then you make it a more liberal court, and then the next president gets in and he adds more justices; you get a more conservative court.This sort of gets you away from the whole idea of the Supreme Court as a trusted arbiter.That is the problem here.This nomination has been driven through—and to some extent, so were the earlier nominations—in ways that were so antithetical to the way we had become accustomed to doing it that—public trust is a very fragile thing.The Supreme Court has public confidence more than any of the other two branches of government, the presidency or the Congress, certainly more than the public has trust in people like me, in the journalism profession.But the numbers have gone down, and they've gone consistently down, slowly, since Bush v. Gore.And I'm afraid it is, for somebody like me who loves the court and believes that the people on it are honest and trying to do their best, to have tilted it so dramatically and violating so many norms, is going to foster enormous public distrust.And that's not a good thing for any of us.

Holding Open the Scalia Seat

… When [Antonin] Scalia died, McConnell, within an hour, I think it was, put out his statement that there would be no hearings coming up, and there was nine months left, of course, before the next election.What was his argument?Just so that we can have somebody actually tell us the definition of what he was saying, what was his argument for what he said on that day and for what he eventually would do to the [Merrick] Garland nomination?

Well, I'm sure you have it on tape, but what he said was that there shouldn't be a nomination in an election year, because the voters should have some input and that they should—their wishes should be considered in the election campaign, and that the next president should fill this vacancy.It was—but what was good for the goose was definitely not good for the gander.

… He made that argument that it was up to the voters, but what was the reason, do you think, for him making such an amazing statement and preventing, with nine months to go in a presidency, taking away that choice from that president?

I think he knew that, you know, it was almost a year away from the swearing in of a new president.So I think he knew that—if this was not extraordinary to name somebody in February or March for a seat that could be filled within a few months, and certainly by the end of the Supreme Court term, so that that justice could begin sitting right away.He knew that, and he didn't want that to happen.And he, I suspect, had enough respect for Obama's smarts to know that whomever Obama would pick would be very palatable to the public, that people would—that he was unlikely to pick somebody who had, you know, anything bad about him in his past or any even extreme views; that that was the way Obama would react, which is in fact what he did.He named Merrick Garland, who not only was really quite beloved by both Republicans and Democrats he'd served with on the Court of Appeals, was a very distinguished judge, is a very distinguished judge, and who wasn't young, who wasn't going to be there forever.He was already in his 60s, so he wasn't going to be serving another 25 years, in all likelihood.He would have made a great impression, and did on several of the Republicans he met with, who just fell for him; they thought he was wonderful and judicious.He'd been the—you know, he'd been at the Justice Department in a top position at the time of the bombing in Oklahoma City.He ran that operation. …

And so it was unlikely that he was going to be able to stop that nomination, if there was going to be any consideration. …So he threw down the gauntlet.He said, "There's not going to be any consideration of anybody," and privately he said to his own caucus, "If anybody defies me, don't even go there."And there were some people, some senators, conservative senators, who really thought, well, maybe we should give this guy a hearing.And they said that.And man, he—he said to them very clearly that he would run a primary opponent and finance that primary opponent if they went on—kept on with that nonsense.

And the audacity of the decision, as you sort of said before, with Garland.The fact that the voters—his statement that the voters deserve a choice here, nine months before an election, to now saying that the necessity was to move forward as quickly as possible, ignoring the fact that the vote had already started and with a very good possibility that—

Look, there's no way this shows up as anything other than hypocrisy.But as I sit here a week before the election, I'm quite confident that Mitch McConnell will be reelected.He's extremely popular in Kentucky, not because people love his cuddly personality, but because he's delivered for them.And it's a conservative state.And he has delivered for them, time and again, in terms of helping people and getting appropriations for the state, and he knows those levers of power, too.So what did he have to lose?What he had to lose, I suppose, was any sense of integrity in the view of history, but I don't think he really cares about that.He cares about getting it done.It's a very Lyndon Johnsonian point of view, also.

Ruther Bader Ginsburg’s Last Wish

… The night that Justice Ginsburg's death is announced … McConnell issued a statement a lot like the Scalia [statement], and he laments her death in the first paragraph, and in the second he says, "We will move forward on any nominee that President Trump puts forward."So that's within hours.And at the same time you have her, you know, news that she had a wish that the next president would fill her seat.So, if you remember what was it like, and how explosive this moment was in the midst of an election and what was going on—it would be great to have some of your detail and thoughts about that moment.

Well, so I wrote the story that said—quoted her as having told her granddaughter that her "fervent wish" was that her seat would not be filled until the new president was sworn in, whoever that would be, after the election.So it would have been after the inauguration.The president immediately tweeted after my story that, basically, it was a lie.But I had talked to her granddaughter, and I also talked to a doctor in the room.I am a reporter, after all, so you do want to get a second source, and there's no doubt that that's what she said.Her family had said to her, "Is there anything you would like to write, like John Lewis wrote, something that would be published afterwards?"And she said: "No, my record speaks for itself.The only thing I would say is that my most fervent wish is that my seat not be filled until after a new president is elected."

So we start with the president casting aspersions on the character of the family and the justice, who is quite beloved in the country, particularly to American women.That's the way he starts.And McConnell did the same thing he did after Scalia died, but in reverse.He just said, "We're going to plow ahead and we're going to do it quickly, and we're going to do it"—he made pretty clear—"before the election."

And McConnell does—puts out a statement, you know, that's basically the same thing he did before, except he's going to do it in reverse.And true to his word, he did it in reverse, in record time.

Amy Coney Barrett’s Nomination Ceremony

If you can help describe how remarkable it is, is the actual nomination announcement that would later become known as the superspreader event.Who are the people there?What is the meaning of it? …How important is that seat to all of these conservative legal luminaries who were there?

Well, you know, it's not unheard of for there to be these ceremonies when presidents announce appointments.This one was extraordinary because it was in the middle of a pandemic.Almost nobody was wearing a mask.And it was noticeable.Everybody was jammed together at the same time we were being told to socially distance and wear masks.Of course it turned into and became known as a superspreader event—probably was the way the president got COVID.It was certainly the way that Governor [Chris] Christie of New Jersey got COVID and learned to have a lot more respect for the disease than he'd had before.

You know, at the time, it was also a show.But, you know, these are—it's not unheard for presidents at a nomination ceremony, essentially, to make something of a show.Other presidents have done that.But this one was done in the middle of COVID, and it was done in a way that defied all of the scientific and CDC instructions about how to deal with this disease: Don't have huge groups, and if you do, make sure they're outside.Well, it was outside.But don't jam people together; instead they were all side by side.And do wear masks; and nobody was wearing a mask.And it's just lucky that the nominee herself actually had already had COVID; otherwise, she probably would have caught COVID on that day.

… So for the community gathered there, what does that mean? What does that seat mean?What does that announcement mean?

So, if blocking Garland and having Gorsuch replace Scalia was good for conservatives, it didn't change the overall makeup of the court.But then Justice Kennedy retired, and he was replaced by Justice Kavanaugh.That is likely to be and was seen as a dramatic change.But now, now conservatives at this event are on the brink of solidifying their majority so that they can afford to lose any member of the conservative majority and still prevail with a five-justice majority.So it will be a 6-to-3 majority.It will be impenetrable for liberals in any case where the conservatives line up and the liberals line up.It makes persuasion of one wing of the court by the other wing of the court even more unlikely.And the losers in this proposition are going to be the court's liberals who are, in fact, liberal justices, nominated by Democratic presidents.But they are nowhere near as liberal as the court's conservatives are conservative.And they are about to lose big time.

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