An End to “Unilateral Disarmament”?
It didn’t even take a day after the death of Justice Ruth Bader Ginsburg for the battle lines to be drawn, including that Trump and McConnell would drive to fill her seat before a President Biden could be inaugurated and threats from the Democrats that if that happened — and if Biden became President and the Democrats gained a Senate majority — the Democrats would expand the Court to take back the power in the Supreme Court that the Republicans had stolen.
(The Republican theft of the Supreme Court would have been accomplished first in 2016 by refusing to allow President Obama to fill the seat vacated by the death of Justice Scalia in February of the presidential election year of 2016, and then by ramming through a Trump nominee after the death of Justice Ginsburg in September of the presidential election year of 2020.)
Court-packing is a somewhat desperate measure, but then these are desperate times— what with so much power having been placed in the hands of a Republican Party that has demonstrated that the only principle that they follow is that they should maximize their power whenever they can.
But CNN legal analyst Jeffrey Toobin suspects that the Democrats’ threat to pack the Court is an empty one. Quoth Toobin: “Democrats are great about talking big, but we’ll see if he and the other Democrats have the guts to do anything. If they retake control of the Senate, will they really add the two seats on the Supreme Court? They’re weak and they’re wimps and they’re afraid.”
No one can be certain that the Democrats will gain the White House and the Senate in the upcoming elections. I don’t know for sure that even if they did, they would be able to add seats to the Supreme Court and fill them with justices of the Democrats’ choosing. Nor is it crystal clear to me that even if they can put an additional two liberal judges on the Court, that would be the wise thing to do.
But for the sake of argument, let us stipulate that the answer to all three of those questions is “Yes.” And turn instead to the question Toobin raises: Do the Democrats have the guts to do it?
The history of this era certainly provides grounds for Toobin’s skepticism. He went on to observe that there’s a “difference to how Democrats and Republicans go about these fights.” I, too, have noted that difference, and written — for nearly sixteen years — that the asymmetry in how the two sides conduct our political battle has enabled a dark and destructive force to inflict great damage on the nation.
So, now that it appears almost certain — in the wake of Mitt Romney’s joining the all-but-two Senate Republicans with his intent to treat Trump’s nominee as business as usual — that the Republicans will be able to confirm that nominee, I hope that if the Democrats don’t pack the Court, it is for better reasons than that they don’t have the guts.
Laying the Groundwork for the Democrats’ Aggressive Move
If the Democrats do intend to retaliate with court-packing, the time to begin laying the groundwork for it is now. And the way to lay that groundwork is to represent their future retaliation as their rejection of the political equivalent of what used to be called “unilateral disarmament.” The message must be repeated loudly and often:
”We Democrats are not going to stand by and cede to the Republicans the powers they have stolen with their unrestrained and wholly unprincipled grabbing of power. We’d prefer having both sides act with restraint and with respect for principle. But we regard it as our sacred duty not to abandon the field to a morally bankrupt Party that will be using its ill-gotten powers to ….”
[and here could be the litany that includes stripping millions of their health care coverage for pre-existing conditions, blocking action to protect us against climate change, etc.]
Unfortunately, it is somewhat of a handicap that the real Republican crime regarding the Supreme Court was committed in 2016— with an abuse of the “advise and consent” powers of the Senate. What they will be doing in 2020 fails to live up to the standard set by President Lincoln in 1864 — deferring an appointment until after a presidential election in which his re-election was far from assured — but by itself it is not a complete travesty.
(Would the Democrats — if they were in the same position as the Republicans now, but were also unencumbered by having declared the “principles” the Republicans proclaimed in 2016 — especially Lindsey Graham’s “Use my words against me” — refrain from filling that seat if the shoe were on the other foot and they had the ability to do so?)
It is 2016 that makes 2020 the scandal that it is. And fortunately, the theft from 2016 can be brought in— as the Democrats have been doing — by continually highlighting that the Republicans are consistent only in grabbing all the power they can, and in proclaiming and abandoning “principles” depending entirely on whatever serves that end.
The moral bankruptcy — the utter lack of principle — of the Republican Party must be shown clearly and repeatedly, as the foundation for the Democrats making good the Democrats making clear and repeated threats that “This theft of power will not stand,” to paraphrase “The Big Lebowski.”
Thus, the total picture of an unprincipled “theft of power” -— which should have been fought far more vigorously back in 2016 — can be utilized now, in 2020, to set the stage for an aggressive Democratic move in 2021 to take back powers the Republicans stole.