Intro: I’ve been following closely the rise of this extraordinarily dark force on the right — a force that has taken over the Republican Party — since 2004. In that entire time, I’ve not seen a single instance of the Democrats going after their opponents too aggressively, or condemning the right too harshly. On the contrary, the Democrats have erred almost continuously in the direction of excessive timidity, excessive niceness. For most of that time, it has seemed that the Democrats were either afraid of conflict (afraid to match the relentless intensity that the right continually brings to the fight), or that they failed to recognize just what the Republicans (and “conservative” America) had become. Or, most likely, both.
It is in that context that I would like to propose two lines of attack — both regarding the Supreme Court — that the Democrats should launch. The right is playing for keeps, and “keeps” threatens the survival of American democracy, and the Democrats should be pulling out all the stops to dramatize the conflict to kindle the passions of as many Americans as possible to support the Democrats’ — and democracy’s — side of the battle, and to minimize the ability of the right to get away with their disgraceful conduct.
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ATTACK # 1: Re THE SUPREMES’ RECENT DECISION GUTTING VOTING RIGHTS
The premise of this line of attack is that the Court’s recent decision (undermining still more of the vital Voting Rights Act) is indefensible. That it belongs on the list of the Court’s clearly corrupt and shameful decisions along with the Dred Scot decision (1857) and Plessy v Ferguson (1896). The premise, to be more specific, is that this decision — opening the door to voter-restrictions that appear to have the purpose of suppressing the voting of minority groups — is a nakedly partisan move by the six Republican-appointed Supreme Court justices to support that party’s drive to overturn the American constitutional system of “majority rule.”
If that premise is mistaken — if the Court’s decision is defensible in the terms that are supposed to govern Supreme Court decisions — than this recommendation is also mistaken. But I think the premise is correct.
What we’ve heard from the Democrats this week is a lot of appropriate hand-wringing about the decision, but they’ve not condemned the partisan corruption of the Court majority. That is what is called for.
Justice Kagan’s dissent has been described as “scathing.” And she should be applauded for that. But she’s on the Court, and that places limits on how fully she can call out her colleagues on the Court for their blatant corruption.
President Biden has chosen a smoothing posture for his role as President, and that looks to be a wise course. He is not the one to engage in hand-to-hand combat with the dark forces on the right, even though he may well recognize the profound darkness with which he must contend.
But the Democrats in Congress have a free hand in such a profound matter as this, and they should adopt a rhetorical strategy that not only sounds the alarm about the fire, but attacks in the harshest terms what the arsonists on the Court are doing.
(It has been observed that the Court in this session came across as much less right-wing than many had feared. But I’m guessing that Roberts steered the Court to look to be above partisan politics on the lesser matters to provide cover for a decision like this, which goes partisan where it really, really counts: i.e. in aiding in the central battle of this political moment, to suppress the votes of those groups that vote predominantly for the Republicans’ opponents.)
Give ‘em hell!
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ATTACK # 2: Re MCCONNELL’S THREAT TO BLOCK BIDEN FROM NAMING NEW JUSTICES TO THE COURT
The premise of this line of attack is that an opposition party’s refusal to consider any nominee for the Supreme Court that a President might put forward is a violation of the Constitution. The premise, in other words, is that such conduct is a clear violation of “the intent of the Framers” when they conferred on the Senate the role of “advise and consent” regarding the person the President names to fill a Court vacancy.
I have little doubt, myself, whether the Framers would declare that what Senator McConnell did in 2016 violated the role they gave the Senate: that role seems clearly to have been some sort of check-and-balance to make sure that the President didn’t abuse his power and put onto the Court people who were manifestly unqualified — in terms of legal excellence or moral character — from filling such an important life-time position.
They would condemn that abuse of “advise and consent” as an unconstitutional theft of a Supreme Court seat.
(All that gives me pause is that I’ve not heard this constitutional argument made by constitutional scholars. On the other hand, legal scholars did prove that McConnell’s actions — and arguments in support of them — were totally unprecedented in American history, showing that never — out of a great many instances under similar circumstances — had the Senate behaved in any such way. That unprecedented nature of McConnell’s stonewalling is highly suggestive of its failing to adhere to what the Constitution requires.
When McConnell began that Republican theft of a Supreme Court seat, in 2016, I argued publicly that Obama should protest loudly and continually, and take to the Supreme Court a claim that the Republicans in the Senate were depriving him — Obama — of the clear powers of the office to which the people had re-elected him in 2012, knowing that they were choosing the person who would be naming new Supreme Court justices if any vacancy should open.
(Whatever might happen to such a case before the Supremes, it would have served an important purpose to fully dramatize the Republicans’ contempt for the Constitution. That contempt has since then become an even greater danger to the American republic.)
But of course, Obama remained very polite and calm in the face of this theft— a theft that has cost this nation dearly, as one can see if one reviews all the 5-4 decisions the Court has made since the Republicans re-took the Court majority by putting Gorsuch into that stolen seat.
Now the issue rises again. As the New York Times reported last month:
Senator Mitch McConnell, the Kentucky Republican and minority leader, threatened on Monday to block any Supreme Court nominee put forward by President Biden in 2024 [and possibly also in 2023] if Republicans regain control of the Senate next year.
The Democrats have responded with displeasure, but nonetheless meekly. There’s been talk of wanting Justice Breyer to retire now so that his replacement can be confirmed before the Democrats’ control of the Senate might be lost in the coming mid-terms. But that talk implies an acquiescence in the terms McConnell threatens to impose— contrary to the Constitution.
Hence I propose this other line of strong attack on the Republicans:
- that the Democrats in Congress make a big and loud issue of the illegitimacy of McConnell’s threat.
- that they tie that illegitimacy to the entire Republican contingent in the Senate, that supported the 2016 theft of a Court seat, that elects as their leader a man who has so often failed to honor his oath of office. And
- that they tie this unconstitutional contortion of “advise and consent” to the larger Republican assault on the constitutional order, from the Insurrection to voter suppression. etc.
Framing the issue now in terms of “unconstitutional theft” could help inhibit McConnell from carrying out his threat later.
The Democrats’ policy should be not to take McConnell’s intention as some sort of given, but rather to protest loudly and, to paraphrase Teddy Roosevelt, “make a big stink.”