It’s Not Just the Supreme Court That’s at Stake

It’s Not Just the Supreme Court That’s at Stake

It’s Not Just the Supreme Court That’s at Stake

Congressional Republicans have pledged to fight dirty. Democrats need to stop playing nice.


As Republican Senators Mitt Romney and Lamar Alexander—once more profiles in cowering—fall into line, Republican Senate leader Mitch McConnell has the votes to confirm Trump’s nominee to replace Ruth Bader Ginsberg on the Supreme Court.

Less than two months before a presidential election, Donald Trump, elected without a popular majority, and the Republican Senate majority, representing a minority of Americans, will nominate and confirm for a lifetime appointment a right-wing, pro-corporate social conservative, carefully vetted by partisan, ideological groups. Faced with projected defeat in the coming election, Trump and Republican operatives are not only organizing to create chaos around the election; they are hell-bent on packing the Supreme Court with another activist right-wing judge wedded to views that are at odds with majority opinion.

There is no shame. The blatant hypocrisy of confirming a judge so close to the election after Republicans blocked Obama’s nominee months before the last election doesn’t matter. Their self-righteous lectures on how the American people should have a voice were just pap. Appeals to good faith or institutional restraint are scorned.

There can be no illusions. This is who they are. A minority party, grounded in small, predominately white states and the South, championing a failed ideology, and committed to doing what it takes to retain power, or at least to thwart the will of the majority. McConnell demonstrated that in his scorched-earth obstruction of everything Obama during the Obama years. Trump demonstrates it in his brazen efforts to rouse racial fears, his reliance on dividing the country as a core political strategy.

Democrats and activists have reacted to the packing of the court by calling on Senate Democrats to use every mechanism to try to halt the confirmation, and, if they win in November, to counter the stolen Supreme Court seats by either expanding the court, as Elie Mystal argued for here, or imposing term limits.

The question is much broader than that. Democrats—and particularly Joe Biden—must discard any illusions that once Trump is ousted, Republicans will have, in Biden’s words, an “epiphany” and cooperate in bipartisan efforts to address the crises we face.

Don’t believe it. If Democrats win the White House and the Senate majority, McConnell and Republican enablers will once more unite in a relentless campaign of obstruction. With the country wracked by growing crises—the pandemic, catastrophic climate change, extreme inequality, racial injustice, endless wars—large-scale, bold, and dramatic action is vital. The country cannot afford to allow McConnell license to once more obstruct progress.

It isn’t enough to focus on the court. The first order of business after the election is the passage of Senate rules. If Democrats win the majority, they will have the power to end the filibuster and nullify McConnell’s ability to obstruct. That decision will be made quickly in the Democratic caucus, even before the Senate formally convenes.

Despite Republican zealotry, however, Joe Biden has remained wedded to a naive longing for the return to the days of bipartisan comity. In response to the effort to force through the Supreme Court nominee, Biden quaintly appealed to Republicans to “follow your conscience.… Uphold your constitutional duty, your conscience, let the people speak.” So-called moderate Republicans Mitt Romney and Lamar Alexander burst that fantasy.

“It was an old-fashioned appeal to decency,” said Jim Manley, who spent 21 years working in the Senate, including six with onetime majority leader Harry Reid. “He acknowledged the hyper-partisanship out there, but he wanted to cool things down a little bit before it gets really ugly.”

No, Joe, it has already gotten really ugly. Conservative Democrats like Joe Manchin, Krysten Sinema, and Diane Feinstein and independent Angus King have said they want to preserve the filibuster. It will take forceful leadership from Biden and Senate Democratic leader Chuck Schumer to force the issue.

Addressing the filibuster in July, Biden told a group of journalists that it would “depend on how obstreperous” Republicans are. Senator Chris Coons, a close Biden ally, echoed that he’d be open to doing away with the filibuster if Republicans don’t cooperate.

That suggests that Biden would be happy to keep the filibuster in place during his first months or year in office to test the “good faith” of Republicans. But that good faith has already been tested again and again and has failed every time. How many times will Democrats have to get mugged before they realize the gloves are off and the knives are out?

Happily, progressive activists have joined in creating Fix Our Senate, a war room to pressure recalcitrant Democrats to end the filibuster. Groups like Indivisible, the Communications Workers of America, the Working Family Party, Common Cause, and Our Revolution have begun to organize. Activists have started to mobilize opinion in the wavering senators’ states. Oregon Senator Jeff Merkley has led the effort inside the Democratic caucus, with strong allies like Elizabeth Warren. Barack Obama belatedly weighed in, calling the filibuster a “Jim Crow relic,” used to impede progress on civil rights.

Not surprisingly, Mitch McConnell warns Democrats not to eliminate the filibuster, for they will no doubt be in the minority sometime in the future. But this is not the time for business—or gridlock—as usual. The crises are too deep, the challenges too great. Democrats cannot allow McConnell and his Republican cohorts to obstruct progress again. The time for nostalgia and illusion is past. Now is the time for action.

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