Republicans are going down and they’re taking the Supreme Court with them
NOTE: This was written a day or so after the nomination of Amy Coney Barrett, but was not posted at the time. Because I feel the content is still relevant in order to illuminate the method Republicans used and because I believe it offers outlines of solutions available moving forward, I am now posting it publicly.
There’s a meme circulating throughout social media that purports that Democrats actually lowered the voting threshold for Supreme Court justices from a supermajority of 60 to a simple majority back in 2013.
The meme takes particular aim at former Nevada Senator Harry Reid, who was then the Majority Speaker in the Senate.
The fact is that Reid lowered the threshold for judicial and presidential appointees, *not* Supreme Court justices or legislation. The move, often referred to as the ‘nuclear option’, was done to bypass Republican obstruction of then-President Obama’s appointees to positions such as Defense secretary, U.S. Court of Appeals for the District of Columbia Circuit, as well as Obama’s choices to lead the National Labor Relations Board and the Consumer Financial Protection Bureau.
President Obama’s second term as president had just begun in 2013, so the endless filibusters and obstruction tactics were a cheap ploy by the then-Republican minority to assert the fiction that the Obama administration was in some way too incompetent to fill roles that are typically filled easily and with bipartisan support.
However, in a more sinister sense, it was a designed ploy to compel Democrats to open the door to dramatic procedural changes in the way Congress conducts itself while processing federal appointees.
It worked.
Senator Harry Reid (D-NV.), the then-Senate Majority Leader, broke the endless Republican filibusters by dissolving the so-called ‘supermajority’ of 60 votes needed for all federal nominees and reducing the necessary votes to a simple majority.
Reid, however, excepted nominees for the Supreme Court and legislation from the move. Those still required a supermajority.
Republicans decried the move as a blatant power grab and voted against it unanimously, knowing full-well that the road was now paved for the possibility of a massive shift in the courts down the road.
The chess game turned into a waiting game. Once Republicans regained both the White House and the Senate, whenever that would be, they would have the power to remove the supermajority for Supreme Court nominees, if they came available, but would also be able to jam the courts with judges who were no more than political actors with barely enough judicial education and experience to serve as a clerk.
Education and experience are not even tertiary concerns for the GOP. The desire of the party at-large, and especially of Kentucky senator and Senate Majority Leader Mitch McConnell, is to effectively alter the federal judiciary for decades to come.
Fast-forward to October 2020 and that goal has been achieved ten-fold.
Roughly a quarter of the federal judiciary, 218 judges in all, have been rammed through in extreme partisan conditions with lifetime appointments since 2017 by President Trump and the Republican-run Senate.
While qualifications and experience are major problems for the a number of the judges put in place, so to are the demographics of the judges, which is 85% white and 76% male. Comparatively, President Obama’s appointees were 19% black and 42% female.
Time and again, confidence in the courts has run almost in perfect unison with the diversity of the courts, the research on the subject consistently finding that confidence tends to erode when the courts no longer resemble the typical American population. If the courts don’t appear open to a black man because he seldom sees a black judge, the appearance is one of white superiority and black inferiority.
Trump’s lack of diversity is comparable only to President Ronald Reagan some 30 years ago.
Also occurring in 2017 was the nomination of Neil Gorsuch to the Supreme Court to fill the spot left by the death of conservative icon Antonin Scalia.
Scalia’s original replacement, Merrick Garland, was nominated nine months prior to the November 2016 election by President Obama.
Republicans, seething at the idea of Obama replacing Scalia, obstructed Garland’s nomination, never even granting him a hearing while using the upcoming election as their shield of justification for withholding their services.
The move was seen as unprecedented and below the supposed dignity of the Senate.
The public was largely unmoved, even among Democratic voters, due mostly to the largely-held assumption that Hillary Clinton would defeat the Guy From Home Alone 2 for the presidency.
She didn’t.
Instead, Republicans swept the 2016 election, seizing control of the House of Representatives, the Senate, and the White House.
As Democrats filibustered Gorsuch in 2017, Republicans enacted the nuclear option and lowered the threshold for Supreme Court nominees to a simple majority. Gorsuch entered the bench with 54 yays and 45 nays.
In 2018, Justice Anthony Kennedy retired from the Supreme Court, giving Trump yet another chance to add a conservative pick to the highest bench in the land. His choice was Kennedy’s former clerk, Brett Kavanaugh.
Allegations of sexual assault would lead to highly contentious confirmation proceedings and would lead to the slimmest margin, 50–48, for a successful Supreme Court confirmation.
Finally, last month, the court, and the world, lost Ruth Bader Ginsburg. The liberal icon’s death seemingly put to immediate test the precedent Republicans set in 2016 in obstructing Garland by not holding a process of replacement until after the country chose its president.
However, knowing that Trump is likely to lose his bid for re-election and take down Republicans’ Senate majority with him, the Senate has moved forward with Trump’s nomination of Amy Coney Barrett, a Notre Dame-alum known prominently for her vocal opposition to abortion rights and, most pressing, the Affordable Care Act.
Democrats have little to no avenue for resistance. Republicans hold a 53–47 majority in the Senate, and though two Republican senators, Susan Collins and Lisa Murkowski, have vowed to vote ‘No’ on Barrett, that still leaves Barrett’s nomination two votes shy of failure.
(UPDATE: Murkowski changed her mind and voted to confirm Barrett.)
A glimmer of hope does exist in Arizona, where Democratic challenger and former astronaut Mark Kelly is maintaining a healthy lead over Republican incumbent Martha McSally in their battle for that senatorial seat.
If Kelly holds on to win, he would actually take his seat in November in time for Congress’ so-called ‘lame-duck session’ where a vote for Barrett may take place. The reason for this odd wrinkle is because McSally was granted her seat after the death of John McCain, so this election is a special election for this particular seat in Arizona and will see whoever wins finish out the final two years of what would have been McCain’s term.
If this happens, the vote would be deadlocked with Vice President Mike Pence serving as the tie-breaker. All Democrats would need is one Republican to cross the line. Sounds easy, but it’s not likely to happen.
Republicans nationwide are beginning to distance themselves from the Trump administration as the race winds to a conclusion in just 23 days, pushing instead for a legacy-cementing, balance-shifting nomination to the Supreme Court that would give the highest court in the land a 6–3 conservative bend that could have massive repercussions for things like LGBTQ rights, Civil rights, and reproductive rights.
Trump’s candidacy has sunk races nationwide, taking what was once deemed a long-shot scenario and turning it into a near certainty that Democrats will retake the White House, the Senate, and expand their already-large lead in the House.
In other words, a blue tsunami.
While little time remains before election night and millions of votes have already been cast nationwide (my own included), nothing is certain, including a Trump loss.
That said, Republicans in Congress aren’t stupid.
Okay, they’re not that stupid.
Okay, they’re not absolute imbeciles.
They know what the polls say and they know their foray into Trump’s political chaos means that their reigns will likely end. But they won’t go until they’ve achieved a lasting judiciary legacy that seems destined to further erode confidence in the last bastion of judicial integrity.
Naturally, this has led to rumors of Democrats using their majority to pack the courts; i.e. adding additional justices to further balance the court’s ideology.
While there is real pressure from the margins of the party, it’s the refusal of presidential candidate Joe Biden to answer whether or not he would be for or against packing the court.
The notion that Republicans would suddenly become outraged over even the whisper of adding additional justices to the court is outrageous to any sensible person, but these aren’t sensible times and people tend to only react to things rather than view them objectively.
But here’s this entire article summed up:
- Republicans open President Obama’s second term by obstructing nearly all of his nominees for numerous federal positions, creating the potential for calamitous departmental issues government-wide.
- Democrats lower vote threshold for nominees of federal positions to end Republican obstruction in 2013 but leave behind the Supreme Court as well as legislation.
- Republicans, then in the minority, revolt and lambast the move, giving themselves cover for future erosion of democratic norms.
- Republicans set new precedent for not conducting Supreme Court nominations in an election year, obstructing the selection of Merrick Garland nine months from election in 2016.
- Republicans lower threshold for Supreme Court nominees to get Neil Gorsuch onto the bench in 2017, ending the Democratic filibuster.
- Republicans push through Brett Kavanaugh for the Supreme Court despite multiple sexual allegations in 2018 and a razor thin vote.
- Republicans blatantly break their own precedent set in 2016 of avoiding election year Supreme Court hearings and nominate Amy Coney Barrett days after the death of Ruth Bader Ginsburg in 2020 and just 37 days from the election.
- Republicans accuse Democrats of wanting to pack the court because they just want to manipulate the judicial system.
That about covers that.
It is true that packing the court is an option. It’s not terribly enticing though considering the constitution does not dictate how many justices there should be and it has been done before, just not since 1869.
But if Democrats do it, what’s stopping Republicans from doing it when they inevitably swing back into power down the road?
Nothing.
Now, does that single-handedly kill the option? Not outright, but it should be noted that Republicans, in case you don’t know by now, don’t give a flying fuck about things like integrity or dignity. The Supreme Court is a bedrock institution and it would be wise for Democrats to weigh other, less nuclear-like options less they give Republicans another wide-open door to further incinerate Americans’ trust in the federal judiciary.
Like what, you ask?
Well, you could grant statehood to Washington D.C. and, if they desire it, Puerto Rico, which is an inarguable need at this point considering that, combined, they house FOUR MILLION American citizens who currently have ZERO representation in the Senate, which is appalling considering that that figure alone is more than the combined populations of Rhode Island, Maine, Montana, and Wyoming.
The next idea is to abolish the Electoral College, which is an antiquated system that has given outsized influence to far-less populated areas of the country and is so unrepresentative of the larger American public that it consistently flies against the popular vote and has led to two catastrophic presidents, both Republican, gaining office with less votes than their opponent.
That isn’t a representative democracy and it’s not even really democracy.
Abolishing the electoral college is popular enough that it was almost done in 1968 and was even supported by Richard Nixon in the early 1970s. There are ways to do it, but the easiest way is through a constitutional amendment, which would take two-thirds of the House, two-thirds of the Senate, and three-fourths of the states (38) to ratify it.
In such a divided United States, that kind of agreement is virtually impossible.
But there is another way, and that is for enough states that equal 270 electoral votes to sign a pact declaring that they would only recognize the popular vote winner in their respective states. That pact currently has states, along with D.C., that add up to 181 electoral votes, which is still well shy of the needed states, but the pact is actively growing and it’s incumbent upon you, the voter, to demand that your representatives consider joining the pact and creating a democracy that actually functions like one.
American democracy has failed millions of its own for far too long and the sad truth is, we are utterly powerless to stop what happens next and that is the appointment of Amy Coney Barrett to the Supreme Court.
She will almost certainly join the Supreme Court and swing the balance of the judiciary for years to come and endanger all kinds of landmark decisions, further eroding confidence in the courts.
Even with a Biden/Harris win and a blue tsunami on November 3, the ideologically-stunted minority of America has won and no amount of shaming, fact-finding or protesting will stop them.
That doesn’t mean all is lost. It just means that, from here on out, we need to be smarter and less cocky and more determined to understand our role in democracy. We lost because the ideological right has no limits on what it won’t do and what atrocities it will perform to win.
Just win, baby.
But we can stem the tide over the next 2–4 years by outlawing illegal gerrymandering and redrawing district lines to better and more fairly represent the areas our representatives govern, and we can begin the push now to protect landmark Supreme Court case decisions that protect civil, climate, women’s and LGBTQ rights by pushing a potential President Biden to make them federally recognized laws of the land.
We can also push for statehood of D.C. and Puerto Rico. Republicans don’t want it necessarily because they know what those votes would look like, but denying them statehood because of party lean is no different than removing Alabama because of its party lean. That’s ridiculous, stupid on all accounts, and should be ended swiftly.
Finally, we can push for term limits on Supreme Court justices, which is just a good idea no matter how you slice it.
Donald Trump is losing and he’s taking the Supreme Court down with him, but it doesn’t have to stay down for long and this doesn’t have to be doom and gloom.
But nothing happens at all if you don’t vote and do your part in removing this national nightmare from the White House and boot his accomplices in the House and Senate as well.
Seven years ago, the Republican Party, fresh off of a demoralizing defeat to Barack Obama, pledged to change their party and move forward in ideology and platform. Then Trump happened and all they did was burrow further into their worst instincts and kill themselves faster.
Here’s hoping they can come back stronger down the road as well. America needs its two-party system, but McConnell rotted it from the inside out and Trump gutted it.
Republicans deserve better. Democrats deserve better. America deserves better.
Let’s start now.
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