Expand the Court

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September 21, 2020 11:48 a.m.

After a bit more time to reflect, some more thoughts.

1: There is no serious or credible way to fight to prevent another corrupt high Court appointment without promising to add seats to the Court if Democrats control the White House and the Senate next year. Anything short of that amounts to playacting.

2: I don’t expect Joe Biden to push this line. It is probably politically best that he not do so. Clearly the very idea of it cuts against every bit of his experience. But he also mustn’t rule it out. The optimal position for him is to focus on the wrongness of another corrupt nomination and say he hopes the President doesn’t force a future Democratic Senate to do so.

3: A few readers have told me this all amounts to ‘taking the bait’ and recasting the final month of the election as a battle over abortion rights. I think this is incorrect on a few levels – not only factually in the immediate sense but also in the implicit judgments contained within it. Regardless of one’s tactical or strategic judgments, these corrupt appointments to the Court go vastly beyond the choice issue. They amount to a decades’ long veto over any progressive legislation even if national majorities continue to elude the GOP. When I say ‘progressive’ here I mean it in the more expansive sense. We may be on the cusp of the Court overturning Obamacare on the most facially flimsy or preposterous grounds. Nor is it only about legislation. It is also about locking in anti-democratic tools for entrenching Republican power – voter ID, poll taxes, Census-rigging. The choice issue is absolutely critical and very much on the line here. But you’re fooling yourself if you think this is uniquely or even mostly about choice or reproductive rights. It’s about locking in Republican power that can’t be won at the ballot box.

4: I have seen a number of people say that Democrats shouldn’t limit themselves to nullifying corrupt Court appointments. They should also promise to abolish the filibuster and admit DC and Puerto Rico to the Union as states. This is a mistake. Those things should happen regardless. We shouldn’t make them contingent on Republican actions.

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