In theory, Biden and the Dem Senate have two months to replace Sotomayor and Kagan

In practice, there is zero chance that this will happen, even after everything else that’s happened since June 14, 2015, and February 13, 2016, and most especially January 6, 2021.

Note that it’s highly unlikely that the Democrats will be in a position to confirm a Supreme Court justice at any point in the next six to ten years. Look at the Senate map, and look what happened in the “deep blue” states of the Northeast last night. Back of the enveloping suggests Harris is going to end up with about twelve million fewer votes than Biden got in 2020.

Note too that all this would be perfectly legal, and completely unstoppable if the Democrats were united in the battle against fascism. But they’re not, so instead we have Norms, and Guardrails, and Collegiality, and Joe Manchin, and Merrick Garland, and op-eds from Yale Law School professors about how Brett Kavanaugh is really a great guy deep down inside.

I’ve got to go teach a class later this morning on the extent to which revenant fascism is creating a legitimacy crisis in American law and politics. I hope your morning is not as closely connected to current events.