Quick Thoughts on Saving the Supreme Court

Democrats can make Republicans pay for violating their own principles

In a year of terrible fucking news, it’s hard to imagine worse news than the death of Ruth Bader Ginsburg. Beyond mourning the death of one of the most important and inspiring people in American life, the implications for everything that progressives care about is almost too daunting to fathom. Few things have more impact than a Supreme Court vacancy.

If we lived in a normal functioning country with a normal functioning Republican Party, there would be no question how the vacancy would be handled. We would simply abide by the principle outlined by Senator Mitch McConnell after the death of Justice Scalia in 2016:

The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president.

Scalia died 269 days before the election. Ginsburg died 46 days before the election. If McConnell was a man of his word, there is no way that he would fill the seat before the election. But as we know all too well, Mitch McConnell is not a man of his word. He has no principle other than the expansion of Republican power and filling the seat of a liberal icon with a conservative hack would be the ultimate expansion of Republican political power. Within two hours of the announcement of Justice Ginsburg’s passing, McConnell announced that they would try to fill the seat — his own words be damned.

A 6-3 Conservative Supreme Court would be devastating to reproductive rights, civil rights, voting rights, LGBTQ rights, and workers rights. Not to mention the Affordable Care Act, Wall Street Reform and any effort to stop climate change. The consequences would be far-reaching and long-lasting. Think of it this way — when Bret Kavanaugh is the same age that Ruth Bader Ginsburg was when she died, my daughter will be in her early thirties.

She turned two in May.

Fighting Back

As we know from the Garland confirmation battle in 2016, Democrats have very little leverage here. The Republicans have the majority and McConnell calls the shots, but that doesn’t mean Democrats are impotent.

  1. Lean into the Fight: There is a terribly stupid narrative circulating that has persisted for nearly two years, that Democrats overplaying their hands on the Kavanaugh confirmation and saved the Republican Senate. That sort of thinking could make some Democrats shy away from a giant fight to save the Supreme Court. To be clear, it is dangerously wrong. A Ian Milhiser wrote in Vox:

    But a recent poll by the Pew Research Center suggests that this perception that judicial politics favor Republicans is outdated. Pew asked Democratic and Republican voters which issues are “very important” to their vote in the 2020 presidential election. In their poll, 66 percent of Democrats and only 61 percent of Republicans named “Supreme Court appointments.”

  2. Make Them Own the McConnell Principle: The Republicans filling this vacancy after everything they did in 2016 is an act of such hypocrisy and shamelessness that it would shock even the most cynical of voters. But the Republicans will only pay a price for violating this principle if they know the principle exists. We should not assume voters paid a ton of attention to the ins and outs of the Supreme Court confirmation battle in 2016. Democrats should embark on an earned and paid media campaign to inform the public and hold Republicans accountable. Every person with access to the internet should post the McConnell quote and dare Republicans to explain why it doesn’t apply now.

  3. Push Vulnerable Republican Senators: It only takes four Republicans to stop Trump and McConnell from filling the seat. There are more than four vulnerable Republicans up for reelection in less than two months. Susan Collins, Lindsey Graham, Thom Thillis, Martha McSally, Joni Ernst, Corey Gardner and the others need to be under maximum pressure to abide by the principle they all supported four years ago. Collins and Graham are already on record saying they would not fill a Supreme Court vacancy in this situation. They have a choice: be people of their word or do Trump’s bidding. Pressure can be applied through socially distanced, masked protests, phone calls and emails to their offices, and ads from Super PACs and other groups.

    Because Lindsey Graham has the consistency of the Taco Bell menu, his spokesperson just put out a statement disavowing everything in the above clip.

  4. Expand the Court: I am a long time supporter of a Democratic President and Senate adding two justices to the court. (Disclosure: I have consulted for Take Back the Court, a non-profit that pushes for court expansion, for the last few months). While the coalition in support of court expansion grows every day, there are still only a handful of elected Democrats that publicly support it. The Democrats must make it clear that if McConnell fills the seat, they will expand the court if they take power in January. Ultimately, McConnell chooses, abide by his own principle or guarantee Court expansion in January.

  5. Flip the Senate: If you are looking for a place to channel your rage against Mitch McConnell, donate to Crooked Media’s “Get Mitch or Die Trying” fund, which directs donations to the most important U.S. Senate races. We have limited control about what happens in the Senate right now, but we can decide what happens in the election. If you care about the Supreme Court, the most important thing to do is give a President Biden a Democratic Senate.

I want to be brutally honest. It is going to be very hard to stop this appointment. There is only so much Democrats can do. We are depending somewhat on the good faith of some Republicans, which rarely turns out well. But, fighting and losing is always preferable to not fighting. I promise you that there is not one “swing voter” that is going to come over to our side, because we took a dive on a tough fight.

The millions of Americans that have been volunteering, protesting, and marching since 2016 expect a fight. They deserve a fight. And we should give them one hell of a fight.