The Republicans’ Misplay of the Supreme Court Fight

by Neil H. Buchanan

Before I get to the discussion advertised in the title of this column, let me start with a seemingly unrelated question: When you receive a refund on your taxes, do you think that you paid zero taxes in that year?
That is possible, of course, but the more likely case is that you (like millions of Americans) have set up your payroll arrangements so that you end up paying more in taxes during the year than you will owe, giving you a nice little lump of sugar when you fill out your taxes in April.  Or if (like me) you want to withhold fewer dollars during the year and then pay a nominal sum with your tax return, you can do that, too.  In neither case, however, is the amount you owed in taxes in a given year knowable from the refund/owed lines of your tax return.

Donald Trump, however, thinks otherwise.  At least based on what he said at the most recent non-debate, he believes that the report in The New York Times showing that he paid only $750 in taxes in 2016 and 2017 is misleading, because he "prepaid" his taxes in the relevant years.  But line 63 on the relevant document for the most recent year (2017's Form 1040) reads: "This is your total tax."  Then, you enter "payments," including "Federal income tax withheld" (line 64) and "2017 estimated tax payments" (line 65).  Adding in any tax credits, you then compute "total payments" (line 74) and, if those are less than your total tax, the difference is the "amount you owe" (line 78).

In all events, the "amount you owe" (when you fill out your tax forms) is definitely NOT the same thing as "your total tax."  Even so, an article on the CNBC website quotes some tool saying that Trump must have meant that he prepaid millions of dollars in taxes and then only owed net $750.00 at the end of the year.  I have not always had great things to say about New York Times reporters, but there is no way that they made that mistake when they published their blockbuster report regarding Trump's taxes.  Again, this is a mistake that no one in their right mind would make: "Oh, I only owed $750 when I sent in my tax forms, so that is how much I paid in taxes last year."

Other than simply setting the record straight on that topic, I also raise this issue because I want to distinguish between purely idiotic statements and bad strategic choices.  The Republicans' recent handling of the Supreme Court vacancy included a lot of idiotic statements, but it was in a fundamental way a truly bad strategic choice.

Some people continue to try to claim that Trump's idiotic statements, such as having prepaid his taxes, are part of a strategic choice.  Perhaps, but the evidence is overwhelming that he is simply an uninformed fool who makes stuff up.  (In his telling, the accountant started the exchange by calling him "sir," which is Trump's way of saying: "Everything I'm about to say is complete BS.")

A more telling comparison to Republicans' handling of the Ginsburg seat is actually the longstanding problem of the organization now known as the Washington Football Team.  In a recent column here on Dorf on Law, I reiterated my argument that the team's Neanderthal owner made a bad strategic choice by digging in his heels in refusing to change the team's extremely racist name and logo.  Essentially, I said that it would have been easy for him to make even more money than he had already made by making a show of having been forced to change the team name.  Why did he not do that?  He is a bad businessman, or he is a racist, or both.

Similarly, I recently revisited my 2016 argument that Republicans could have gotten everything they wanted and more by opposing Trump in that year's general election; and even after they blew that opportunity, they blew it again by sticking with Trump post-2016 when they could have done better by dumping him.  The title of that column captures the essence of the argument: "The Long Con versus the Smash-and-Grab: Why Do Republicans Have So Little Finesse?"  They got what they wanted (judges and stroke-the-rich economic policy), but they paid too much for it.
Where does the Supreme Court fight fit into this?  The Republicans had every opportunity to appear to take the high road, "doing the right thing" by saying that it was absolutely appropriate to wait until after Election Day to fill the seat.  They could have nominated someone and held hearings, but even that was not necessary.  Then, if they were to lose badly in the elections, they could have said, "We waited until after the election, which is all we promised to do," at which point they would ram through the confirmation during the lame duck session.

Would anyone have thought to ask them about that in advance?  Sure, but they are very good at not answering questions.  The larger point is that they played this all wrong by putting the Supreme Court and the Affordable Care Act front and center in the final weeks of the election.

I cannot imagine a single Trump-inclined voter who would have lost enthusiasm upon being told that the vote would not happen before the election.  They all believe that Trump and the Republicans are hugely popular, so there is no risk in their minds.  But even if they perceived some risk, they were going to turn out and vote for Trump no matter what.  By contrast, there are (shockingly) still people who hate Trump but who might not vote in this election.  The Republicans thus put Trump and their own Senate colleagues in an unnecessarily harsh light that almost surely cost them net votes.

The only other explanation that could make sense of any of these decisions is contained in a guest column by Jed Stiglitz this past June.  There, Stiglitz argued that the whole point of Trump’s lawyers making laughably bad arguments in legal proceedings is to "break the courts," that is, to see just how many barriers can be broken in the process of discrediting the courts as an institution.

Similarly, Republicans' self-damaging embrace of Trump and their gratuitous rushing through of a Supreme Court confirmation were bad ideas for the sake of bad ideas.  We can do stupid stuff whenever we want, so just watch us!  They are not doing it in spite of the stupidity but because they want to prove something.  Without the smash-and-grab stupidity, they could not make their point so effectively.  Similarly with the Washington Football Team.  Trump's tax claims, by contrast, are not strategically stupid.  They are just stupid.