The Democrat’s Dilemma
The Supreme Court is split, four to four. The split is partisan, four Democratic appointees, and four Republican. While in the past, party didn’t seem to matter as much once a Justice receives their lifetime appointment, cases such as Bush v Gore and Citizens United demonstrate that the party is “strong” within each justice (thanks Yoda.)
And the Supreme Court is split four to four along ideology. There are four more liberal Justices, not surprisingly the Democratic appointees. And there are four conservative justices, all carefully groomed from their earliest legal careers by the Federalist Society. They aren’t just Republicans, they found their legal ideology in law school and have carried it forward throughout their careers.
These justices are different than the “old days” Republicans. Just as the modern Republican party has changed, so has their Court appointees. Republicans like Chief Justice Earl Warren (Eisenhower), Justice John Paul Stevens (Ford) or Justice David Souter (H W Bush) found their more liberal voice on the court. They were the compassionate, business Republicans, who saw individual rights as paramount.
The Federalist Society justices have embraced a view of the Constitution that places strict guardrails on the Courts. They are akin to the “Strict Interpreters” of early American history; they look to the original language and intent of the authors of the Constitution. The more liberal idea of the Constitution as a “living document” able to grow and expand with the nation, is anathema to them. Their view: it is up to the legislatures and states to grow and expand the Constitution through legislation and the Amendment process. The Courts “merely” maintains the “lanes.”
This dogma puts the choice of the ninth Justice at a “national crisis” level. No longer can we expect a new Justice to “find their view” on the Court; the Federalist Society members have a pre-ordained theology that will control their rulings. The ninth Justice becomes the fifth vote, and the Federalist Society will control our judicial process for the next twenty years.
For current Republicans (other than the old-school Republicans like John Kasich or Mitt Romney) this judicial appointment is a once in a lifetime opportunity to shape America. The driving forces behind the current conservative party, not just the Trump voters, but the huge dark money interests such as the Koch brothers; are “all-in” on this selection. Senator Majority Leader McConnell has no choice but to pull every string and use every piece of leverage he has to get this appointment done, and done before Democrats have the opportunity to change the majority.
It really is a win-win situation. If the Democrats actually stop a Trump appointee, then Republican voters will be highly motivated to vote in November, and Republicans are likely to maintain power in Congress. If the Democrats try and fail, then the life-dream of a Federalist Society Supreme Court is realized, and that conservative philosophy will be enshrined in decisions and precedent for the next century. Republicans may lose control of the Congress, but for many it will be worth it.
So what should the Democratic strategy be?
Minority Leader Schumer has lowered expectations. His deputy, Senator Durbin, has gone so far as to say there is nothing Democrats can do, one vote shy of a majority. They are making a shrewd political calculation. Should Democrats commit to defeating a “Federalist Society” candidate for the Court, they will need every vote in their caucus, plus at least one more. Republicans Susan Collins and Lisa Murkowski offer the tantalizing pivotal votes to change the majority.
The problem: even if they can get this done, the short term win on the court may well cost a longer term chance at the Senate majority. Four Democrats running to return to the Senate; McCaskill in Missouri, Manchin in West Virigina, Donnelly in Indiana and Heitkamp in North Dakota are in very difficult races in “Trump” states. If they are “whipped” to vote against a Trump Court appointee, it makes their reelection chances even shakier.
If, on the other hand, the Democratic leadership “fights the good fight,” but allows those bubble candidates to vote their conscience; then they have a better chance of winning a majority in the Senate. The four would might well return to the Senate, with the Supreme Court change becoming a fiery motivator to drive Democratic voters to the polls.
The “more progressive” end of the Democratic party, represented by Senators Booker and Warren, see this nomination as the existential fight for the nation. From the liberal standpoint, they aren’t wrong. It is a true test of ideology: if a Democrat doesn’t stand with them on this; then they just aren’t a Democrat. The problem with that approach is that if they don’t win, and maybe even if they do, it puts off Democratic ability to actually exercise power until at least the 2020 election.
The Democrats are not as split in ideology as commentators would suggest. The division is based more in strategy and priority: gain control of the Congress, or stay ideologically pure and risk losing both the fight for the court and the chance for power. That is the Democrat’s dilemma.
If Democrats win big in 2020, a 60 seat majority in the Senate, a majority in the House and the Presidency we can “pack the Court”, that is, add two seats. Problem solved. If Republicans want to play hardball we can do that too.
I’m with you. Just the threat worked for FDR