The Critical Question Facing Democrats and the Court

on December 21, 2017 in Washington, DC.
Alex Wong/Getty Images North America

There’s a point about strategy about the new Supreme Court pick I wanted to discuss with you. It’s very important and I have a clear view. But I want to share some contrary views too.

There’s been a lot of criticism of Democrats pounding the so-called ‘McConnell Rule’ for Supreme Court picks. I fully subscribe to this criticism as far as it goes. There is no such thing as the McConnell Rule. It was always transparent bullshit. It was simply about power. Moreover, Republicans are fully double-jointed when it comes to hypocrisy. They will not miss a beat saying this was critical in 2016 and meaningless in 2018.

There’s an additional point that both of the voices below make. If a vote on the next Supreme Court Justice is delayed past election day that will likely become a potent weapon to mobilize base Republicans. Overturning Roe v Wade would truly be on the ballot. Obviously, this would deeply mobilize abortion rights supporters too. The problem is that the latter group is already energized and mobilized. The Republican problem is that their voters are generally not. So if everyone gets charged up, it’s probably a net win for Republicans. Finally, the big Senate races are almost all in red, generally anti-abortion rights states. (Abortion is far from the only issue at stake. I focus on it here because it’s the most galvanizing one for the right.)

The third point is that there’s probably nothing Democrats can do to stop President Trump and the GOP Senate majority from eventually putting this new Justice on the bench. It’s not true to claim there’s nothing Democrats can do at all. There are a number of things they can do. But a determined Majority Leader (and we will have the most determined) can probably plow through those fairly quickly.

All of this raises the question. Should Democrats really go to war over this SCOTUS nomination when its success is all but assured and delaying may perversely help the GOP? This is a real and significant question that both of the below voices address. But I believe the answer is yes. Here’s why.

First, as I said, the ‘McConnell Rule’ is bullshit. But I think the exact argument Democrats fight on isn’t the most important thing. The most important thing is that Democrats need to fight this hard both to take some minuscule chance to defeat it and also to show that they know this is not a normal political moment. The last SCOTUS Justice was stolen through a corrupt act. Now, this compounds it. We have a sitting President who is the subject of multiple criminal investigations who is about to appoint a Justice who will likely judge whether the rule of law should apply to him. That is not remotely okay. That should not be allowed to happen both for the safety of the Republic and for basic principle.

But what if doing this actually damages Democratic numbers in Washington? Here’s my reasoning. You don’t win fights by not fighting. That applies to battles and wars. Democrats are asking voters, a significant number of whom may not ideologically be Democrats, to vote for them as a check on Donald Trump. I don’t think you can convincingly make that argument when you’re not doing everything to provide a check while you’re making the argument. To put it more specifically, you cannot go into an election in which enthusiasm and motivation is everything and in which numerous Democratic constituencies have key issues on the line and start the process by demoralizing them. That will not work. So I think you have to fight and fight in a way that signals clearly that you don’t regard this as a normal political situation. You have to take the risk of that paradoxically backfiring situation.

The benefit Democrats have is that I see zero chance that Republicans will take the risk of putting this vote past the November election. Everything is in their grasp. They will crawl over broken glass to grab it. A question I have is whether they might try to hold a vote in say mid-October, safely putting the person on the Court but still trying to frame the election around it. Who knows? Simply put, we’re not in normal politics. I think you have to fight and fight hard and fight not like it’s normal politics but like we’re in the midst of a political and constitutional crisis. Because we are.

With that said, here’s the take from Theda Skocpol …

I think Democrats need to avoid overplaying this SCOTUS appointment, timed to allow the GOP to make more gains in the Senate and maybe hold the House. It is really unwise – and weak – to call for delay beyond November by validating the McConnell’s ploy Garland as a “precedent.” Furthermore, Democrats need to recognize that Trump and the GOP are going to work their will here. I fear that DC legal advocacy groups are going to push the Democrats into suicidal grandstanding over abortion. That is a loser in the Midwest and beyond. It is also not very meaningful, in my view, because Roe has already has been weakened in practice in many states for ordinary people, especially low-income women who have long been denied Medicaid abortions. Indeed, of Roe is outright overturned in the next couple of years, that is likely merely to deepen the state to state differences, and may create a backlash –especially against Trump for 2020 and Republicans trying to stay in power in many states thereafter. The fact is they are pushing justices that are not going to do popular things. Trump and the GOP will be planting the seeds of blowback.

Democrats should be demanding the appointment of a moderate Justice who can get 66% votes or better, on the ground that this is better for the country. It is a good argument to make, one that many middle of the road voters will agree with.

I worry when Senator Warren and other coastal liberals declare this “the fight of our lives.” It makes NO sense to declare a “fight of your life” that your side has ALREADY LOST. Much better to look to repositioning forces for the next fights. The Dems must take at least the House and some state legislatures and Governorships this fall, and if they do not, the country not just the Court is lost, because of voter suppressions that will happen thereafter. Democratic candidates and voters across the country have to keep their eye on the ball. Voting and broader legislative strategies are the key now.

In the bigger picture, this is the end of an era of advocacy-legal liberalism, in which progressive donors and professionals have invested heavily in the idea of winning in courts regardless of majorities in Congressional and state elections. That was never a sound way to proceed. Now it is dead, and liberals need to forget the idea that SCOTUS will back up progressive causes without building popular and legislative majorities, especially in states as well as Congress. That will not happen for many years, maybe never again. On the other hand, if liberals can become local and state organizers and voters, in due course the courts will have to bend.

Meanwhile, there is a lot even very Federalist society Justices will have a hard time stopping: Tax changes, spending changes, improvements in health care and more generous Social Security, family leave, etc. In these states much can be done to further voting rights and access and maybe even changes in state constitutions to make it more like the Pennsylvania Constitution that allowed challenges to gerrymandering. These all matter much more to most people than preserving abortion “rights” that have already been gutted in practice in many states. As for the Supreme Court’s rulings on immigration and national security issues, they are reinforcing presidential powers, and Trump is not foreover. A Democratic president will be able to go in new ways.

We should all tell the Democrats not to overplay this SCOTUS seat, especially as a fight over abortion rights. The seat is lost already. Better to let the right score its touchdown fast, in September, and be able to go into the November elections with a broader message. If, by any chance, Trump and McConnell realize that it would be to their political benefit to drag this out to a post November vote, well look out what you wish for. Energized Christian right voters will deliver more GOP seats in ND, MO, IN, MT, etc. Democrats, having argued to wait, will be much worse off when waiting backfires.

And another view from TPM Reader MS

The dilemma we’re in right now is that Wile E. Coyote had already gone off the cliff, and we’re pretending that there’s a way to keep him from falling. Gravity doesn’t agree.

The former prosecutor’s comment is right that the Democrats shouldn’t let McConnell’s dishonest treatment of the Judge Garland nomination become the norm. But I think he also gives too much credit that anyone – elected Democrats, the media, or grass roots activists – could stick to a framing that the issue is the ability of a crooked president to appoint the person who will ultimately rule on the Mueller investigation. And regardless, it’s not a sustainable position for two-and-a-half years. Donald Trump is going to get his nominee onto the Supreme Court. Even if it ends up being under a President Pence. It’s horrible, but it’s going to happen.

Let’s think through about what happens if Senate Democrats are able to successfully delay or possibly block any Trump nominee prior to the midterm elections – for instance, by a 49-50 (no McCain) vote, assuming maybe Collins somehow flips – and given that the Supreme Court filibuster is now dead, because fair play isn’t how McConnell rolls.

Evangelicals may or may not like Donald Trump, but they voted for him anyway, and he’s shown he’s willing to deliver for them in spite of his personal violation of every norm in which they claim to believe. Putting up a roadblock to Trump’s (constitutional) right to make his SCOTUS appointment will undoubtedly mobilize the right in the midterms and beyond.

It’s easy to be myopic and look only at how losing SCOTUS for a generation should mobilize the left. But electoral demographics have to take into account mobilization on both sides. Mobilizing the Democrats on the coasts isn’t going to win the Senate or take over the House if the right feels threatened enough to get out and vote. They elected Trump largely on the promise that he would give them a SCOTUS majority. They bought it, they can taste it, and they’re not going to give it back. Democrats don’t do threatened the way Republicans do. It’s their bread and butter.

If Trump’s nominee isn’t approved quickly, I strongly believe that the blowback from the right would be massive, the GOP would use the resistance to Trump’s SCOTUS nominee(s) to amplify their relentless culture war, and Trump might just get that red wave that he’s fantasizing about. Democrats will lose their (already slim) chance to retake the Senate.

Unfortunately, Democrats will eat their own if they don’t put up some kind of resistance. But what does that resistance look like, and how do you satisfy those who will abandon representatives who recognize the futility and danger of an effective resistance on this issue? Here’s more of the dilemma – if Democrats lose quickly on the SCOTUS nominee, the SCOTUS issue is off the table for the midterm election, and Democrats are actually able to take back the Senate (which will most likely NOT happen if the nomination is being blocked at the time of the election), the common wisdom will immediately become that Democrats should have somehow blocked Trump’s nominee and they were feckless in failing to do it.

I’m not sure where this leaves us, or how to get to where we need to be. But the ultimate and most important question needs to be, how do we elect Democrats across the board, at the Senate, the House, and across state legislatures and at the local level? The new, solidly conservative Supreme Court is going to be dangerous. Democrats need to focus on ensuring that the legislation that comes out of Congress and the states does not feed the conservative Court and allow it to undo the principles that should define us.

Winning a short term battle on this SCOTUS nomination could be more dangerous than a quick loss.

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