Want to take back the Supreme Court? We have to be ruthless
I ran this column on July 2, 2014. I foresaw that the Republicans would do something like hold the Scalia seat open and deny Barack Obama a Supreme Court pick. I’m rerunning this column now, not to say, “I told you so” but to reiterate that the resistance has to clearly see who we’re fighting against.
At the end of this column, I have a suggestion for how we can blow up the apple cart and take the court back and maybe finally get this country back on the right track.
Igniting a mushroom cloud in your head
July 2, 2014
Forget the hand wringing over the atrocious Hobby Lobby decision by the Supreme Court. Screw Hobby Lobby. Go to Michaels. The decision wasn’t shocking. After all, Mr. Moneybags Romney told us corporations were people. They have mistresses (politicians and judges, usually). Now we’ve learned they have religions, too. But being shocked by a ruling from the Roberts court is like being shocked that Sarah Palin said something ignorant.
I’ve been writing about this for a long time. The moment to be seized right now isn’t about the pathetic rulings of the Roberts court. It’s about the court itself. The Supreme Court (and lower courts to a lesser extent) has been the tip of the spear for the conservative movement for decades. They long ago realized that a Republican court would be an effective insurance card during times their party didn’t occupy the White House or control Congress.
Justice Ruth Bader Ginsburg, 81, has had health issues. Justice Antonin Scalia is 78. Justices Anthony Kennedy and Stephen Breyer are 77 and 75 respectively. It’s likely we will see one or more vacancies on the court while Barack Obama is president. Should a conservative justice step down or die, the balance of this court will shift from 5-4 conservative to 5-4 progressive. This would trigger the mother of all political battles.
Today’s Republican Party would never allow that shift to happen. If Republicans gain control of the Senate this November, they would deny President Obama’s nominees. They would fight to the political death to prevent the balance of power from shifting. Until Harry Reid and Senate Democrats changed the Senate rules on judicial appointments, invoking the so called “nuclear option” that allowed nominees to come to the floor for a vote without Republican stall tactics, the Senate Republicans were opposing every Obama judicial nominee. What do you think they would do for an Obama Supreme Court nominee if they were in power?
They could stall to try to ride out Obama’s term in hopes a Republican President would be elected in 2016. Sounds far-fetched? This is the group that threatened to let the U.S. default. This is the group that opposed their own bills once the President signed onto them. We’re headed to a constitutional crisis on this issue like we’ve never seen in modern times.
What’s worse is that should Ruth Bader Ginsburg or another progressive justice step down, Senate Republicans would see that as an opportunity to strengthen the conservative court by blocking the nomination of any center-left candidate.
In the old days, it was understood that the President nominated whomever he wanted and the Senate would give that nominee an up or down vote. The overwhelming majority of Supreme Court nominees have been supported no matter which party ruled the Senate. Out of the 151 people nominated, the Senate has rejected only 12. Some others were withdrawn or had other circumstances, but only 12 were rejected.
Honestly, it would be best if Ginsburg, who is a two time cancer survivor, steps down now so President Obama could nominate and the Democratic Senate could confirm her replacement before November. Sure, the move would infuriate Republicans, but so what? We’re talking about the Supreme Court! But whether that happens or not, we’ve got to take this fight seriously. We have to help the Democrats hold the Senate.
Anything can happen. People drop dead of heart attacks. A Justice could be diagnosed with a terminal illness. A family emergency might make a Justice quit early. Antonin Scalia could go hunting with Dick Cheney again. Accidents happen.
Progressives, women, minorities and anyone who believes that individuals deserve to have more rights than corporations need to light a fire under their asses and vote this November. Say what you want about Tea Partiers and right wing ideologues, but they know the importance of voting. Remember that Republicans have been incredibly good at getting people to vote against their economic interests. We can’t waste time trying to convince the ignorant to vote the Democrats’ way in such a short amount of time. No, you can’t argue with stupid, but you can outvote it. This fall, we need to see young people come back to the polls. Blacks have to soldier on through the Byzantine ways some Republicans employ to keep them from voting, and pull that lever in record numbers. Talk to your friends. Get them registered and motivated. There needs to be a surge to keep the Senate in Democratic hands.
It’s not because the Democrats are full of great ideas and are making an affirmative case for themselves. Most are simply playing the incumbency game. I gave up on them as a party fourteen years ago. But at least with a Democratic Senate, we’ll have hope to at least hold ground in the Supreme Court, with the chance to tilt the balance back to the people against the moneyed interests. You may not love Harry Reid, but you’ll want to self immolate should Mitch McConnell become majority leader.
If you don’t want to see civil rights gains turned back, corporations gaining an even stronger stranglehold on our democracy, women’s health issues beaten back by five angry men, and America creeping ever closer to theocracy, we have to head to the polls. Nate Silver’s Five Thirty Eight gives the Republicans a 60 percent chance of winning the Senate. Nate’s rarely wrong.
Remember that LBJ ad where the little girl is picking daisies and the next thing you see is a nuclear mushroom cloud followed by LBJ saying, “These are the stakes…?” I want to ignite a mushroom cloud in every thinking person’s head on this issue. We’re talking about lifetime appointments (which is something we need to change, but that’s a different column). We’re talking about a cabal of conservative stooges in the highest court of the land that needs to be shaken up.
Get you and your friends to the polls in November. Hold the Senate. What happens in November decides the fate of the republic as we know it. Those are the stakes.
That’s what I wrote four years ago and here we are, the victims of our own complacency and the Republicans’ political brutality. President Obama and the Democrats are guilty of not seeing just how unscrupulous and ruthless the Republican Party is at their core.
Take the gloves off. Screw decorum. Forget tradition. They’re ruthless so we must be ruthless. They’re relentless so we must be relentless. With all due respect to Jesus Christ, there’s to be no cheek turning here. We have to think outside the box.
It’s unlikely but if the Democrats take the Senate this fall, there should be an immediate end to any consideration of judges as long as Donald Trump is president. No federal judges approved at all. Obviously, if another Supreme Court seat because available it will be held open under the Mitch McConnell rule.
Beyond that, since we’re in this new era where bipartisanship is dead and politics has become blood sport, how do we fight back? We work hard to get Donald Trump removed from office. It may not happen before 2020. In that case, we work hard to defeat him at the polls and have a new president. If we have a Democratic president and a Democratic Senate, they must work quickly to fill all of the federal judicial seats available. But they should also expand the federal bench and add new judges.
The pièce de résistance? If we have a Democratic President and a Democratic congress in 2021 then after passing legislation expanding the Supreme Court, the new president should immediately nominate enough progressive judges to tilt the balance on the Supreme Court. The Constitution does not say the Supreme Court is limited to nine justices. Pack the court. If there’s a 6-3 conservative tilt to the court by that time then the new president should nominate six progressive justices to make a 9-6 fifteen member court.
Silence any mealy-mouth Democrat or progressive who doesn’t have the stones to do what must be done. Franklin Delano Roosevelt tried to expand the court but was shut down by Democrats. We can’t have those weak-kneed traditionalists stand in the way of this progress. In order to pass the necessary legislation, the Democrats may have to kill the legislative filibuster if Bitch McConnell hasn’t already done it by then.
The president should nominate those new justices and the Senate should quickly confirm them. There will be a godawful protest from the right but the whole thing will be completely legal and constitutional. Perhaps after that, the nation may want to have a serious conversation on how we get back to a new normal.
If they want to play hardball, we can play that game, too.