We've reached the stage of the presidential campaign in which everyone who's either a participant or a close observer has reached a state of complete mental overload. Colleagues, friends, and students have frequently remarked over the past week or two that they are desperate for the election to be over. This is especially true of Clinton supporters of my acquaintance, who nurture (perhaps unrealistic) hope that Trump and Trumpism will face a popular rejection on Tuesday that will expel both the man and his brand of politics from the American party system.
Given everyone's frayed nerves, it seems almost sadistic to suggest that less will change after the election that many might wish. If Trump somehow manages an upset, of course, the fallout will be unprecedented—even more so now that the events of the past few weeks have set Democrats up to view such an outcome as an effective hijacking of American democracy by the Russians and the FBI.
The more likely outcome remains a Clinton victory, though by less-than-landslide proportions. But here, too, the potential for political combustion is enormous. The entire Republican popular base is poised to go ka-BOOM in response to the ascension of President Hillary, and Republican leaders will see no choice but to ratchet up the vehemence of their opposition to a level that will even exceed that of the Obama years. For the duration of his presidency, many Republicans have viewed Obama as an arrogant Marxist incompetent who hates America and all that it stands for; they think all those things of Clinton, too, but add to them the belief that she is also a criminal who belongs in prison. The race among Republican members of the House of Representatives to be the first to file articles of impeachment against her promises to be a competitive one, and the GOP congressional leadership will face considerable pressure to engage in even-more-frequent acts of dramatic—and high-risk—confrontation.
We already know what the biggest fight will be. It hasn't received a great deal of attention in an all-Trump-all-the-time campaign, but the vacancy on the Supreme Court promises to serve as a particularly bloody partisan battlefield once the election is over. If the Republicans hold the Senate, it is likely that they will prevent Clinton from filling the Scalia seat for the entire four years of her term. While this would be an unprecedented act, there is simply no political or ideological incentive for any Republican senator to allow the confirmation of a fifth liberal justice. (Democratic hopes that the blockade of Merrick Garland would prove electorally costly to swing-state Republican senators this year seem to have gone unfulfilled, only increasing the likelihood of indefinite GOP obstruction.)
If the Democrats gain a majority in the Senate, the working assumption is that they will jam Garland, or a replacement Clinton nominee, through the chamber on a party-line vote. This is probably correct, but the political cost and pain involved is underappreciated. Any Democratic majority in the Senate is likely to be very narrow—it could even hinge on the vice president's role as a tiebreaker—and dependent on a few pivotal electorally vulnerable senators from normally Republican states, including Joe Manchin of West Virginia, Joe Donnelly of Indiana, and Heidi Heitkamp of North Dakota.
These Democrats will need to join with their more liberal fellow partisans not only to confirm the fifth liberal justice, but to invoke the "nuclear option" preventing a Republican filibuster of the nomination. This involves not changing the formal rules of the Senate—a process that is itself subject to the filibuster—but using a parliamentary point of order, sustained by a simple majority, that the cloture rule does not properly apply to Supreme Court nominations. (The previous use of the nuclear option in 2013 removed the filibuster for lower court candidates but left it intact for the Supreme Court.)
Regardless of what one thinks about the filibuster rule or its increasing use by the Senate minority, removing it by brute partisan force rather than via the normal procedures for modifying chamber rules adds fodder to what will be fierce Republican charges that the whole thing is an illegitimate power grab. If Democrats take majority control in January, they will face the choice of whether to invoke the nuclear option preemptively or wait until Republicans actually filibuster Clinton's Supreme Court nominee. There is some logic to ripping the Band-Aid off quickly, but red-state Democratic senators may prefer to wait for weeks or even months, giving Republicans the opportunity to amply demonstrate their intransigence before "reluctantly" concluding that the nuclear option is an appropriate response.
All of this will play out in an atmosphere of unconstrained partisan-ideological rancor. The stakes are indeed high—the formation of a liberal majority on the Court for the first time in 40 years is understandably unacceptable to pro-Trump and anti-Trump conservatives alike, while simultaneously representing an important potential legacy for a Hillary Clinton presidency that is likely to be prevented by congressional gridlock from enacting its major legislative priorities.
The election next week will resolve some important questions; the difference between the two presidential candidates is in many respects the biggest in living memory, and one will be president while the other one won't. But the acrimonious nature of party politics in the United States may only be reinforced by the outcome on Tuesday. Once the results are in, many Americans will return to their "normal" routine of only intermittent attentiveness to the world of politics. But those who continue to follow the daily march of events cannot count on the end of the campaign to provide a respite from the perpetual partisan battle.