It took less than an hour after Supreme Court Justice Antonin Scalia’s death became public knowledge, eight full months before the 2016 election, for Senate Majority Leader Mitch McConnell to declare that President Obama would not fill the vacancy.
Obama went through the motions of nominating a new justice anyhow, and a handful of Republicans expressed meek disapproval with McConnell’s outrageous power grab, but because of who McConnell is, and how the conservative movement operates, everyone in the political world knew his declaration would hold.
The situation confronting Democrats today, as Justice Anthony Kennedy prepares to retire, is a little bit different. McConnell remains majority leader, which means Democrats probably can not stop him from forcing a vote on whomever President Trump nominates to replace Kennedy. The only thing Republican senators had to do in 2016 was keep their heads down, because McConnell was their heat shield. Democrats will have to vote.
But Democrats can thank McConnell for obliterating all pretense that the confirmation process is norm and precedent bound. Because the Senate is for all intents and purposes divided 50-49, Trump and McConnell can only confirm a nominees if either a) all Republicans support that nominee or b) Democrats fail to unify, based on one justification or another, behind the view that Trump should not be allowed to fill the vacancy—at least for now, and not with another Gorsuch clone.
A unified Democratic caucus would throw relevant and uncomfortable questions—about Roe v Wade, about Trump’s legitimacy, about the GOP’s crude contempt for democracy—to the Republican senators themselves. Each of them would have to grapple with being the decisive vote for opening a Pandora’s box, inside of which we could easily find the criminalization of abortion, the destruction of civil and worker protections, and a legitimacy crisis for the country’s entire constitutional system.
Fortunately, the arguments for Democrats creating a united front is strong and deep. Unfortunately, the party has misapprehended the moment, and appears unprepared to take aggressive action on behalf of their most vulnerable constituents, whose lives and livelihoods hang in the balance.
The case for unanimous opposition is like a wedding cake—each tier has its own internal consistency, and could stand on its own, but they are particularly impressive when stacked together.
On purely moral grounds, Democrats should resolutely oppose any change to the ideological balance of the court that is likely to place health care, reproductive rights, the march toward LGBT equality at risk. Trump has already promised to select a nominee from a list of 25 Federalist Society approved candidates, all of whom are committed movement conservatives. They may pretend to be independent-minded jurists, as part of the perfunctory kabuki of the confirmation process, but they are not.
That argument would be persuasive under any president, but Trump isn’t any president. He’s a majority vote-losing president, who is under federal investigation for crimes that might render his entire presidency illegitimate, and which may yield challenges that reach the Supreme Court. Trump may literally be picking a judge in his own case.
There’s a basic majoritarian tier as well. Under the rules of fair play, which do not include foreign subversion of the election, Trump would not be president, and the seat McConnell stole would have been returned to its rightful owner. But even if those crimes had never been committed, or even if we had reason to believe they didn’t tip the election to him, he would still only be president because of the peculiarities of the Constitution. The people didn’t vote for two new right-wing justices. They didn’t vote for either of George W. Bush’s nominees, either. Lockstep opposition to Trump’s nominee would reflect the will of the public (who, of course, will have to live under the rule of whoever is confirmed for decades).
Forcing McConnell to bat 1.000 whipping votes amid a fierce opposition campaign, for a nominee whose legitimacy will be questioned for decades, would also be an admonition to him and the rest of the GOP that Democrats won’t unilaterally disarm. He created a new an extraordinary precedent by preventing Obama from reshaping the Court. If only for the party’s own integrity, Democrats should be willing to fight here, particularly in this way, which wouldn’t even cut against existing norms.
Any one of these arguments would suffice, but together they are unassailable. There is no alternative case that isn’t disingenuous or inconsistent with democratic goals. Nevertheless, politically vulnerable Democrats are poised to do McConnell’s bidding for him, and to no good end. Sen. Heidi Heitkamp (D-ND) voted for Gorsuch, thinking it might buy her good will with Trump supporters. Campaigning in North Dakota last night, Trump demonstrated just how foolish this kind of thinking is: “Heidi will vote ‘no’ to any pick we make to the Supreme Court.”
And yet, Heitkamp is in no hurry to join a unified opposition. “I was taught that two wrongs don’t make a right,” she said. “All senators need to have time to meet and evaluate the body of work of any nominee. Let’s start there.”
Could Democrats engineer the failure of Trump’s nominee in a way that allows McConnell and the GOP to mobilize voters ahead of the midterm? That is conceivable, yes. But that would also give Democrats the chance to countermobilize, to win the Senate, and put a stop to it. The least Democrats can do is give their voters a fighting chance, so losing the Court for a generation does not become fait accompli. Shame on Democrats if they can’t muster that.