June 29, 2018 | Reading Time: 3 minutes
Dems Must Attack Illegitimate SCOTUS
To save the village, the Democrats have to burn it down.
I argued in yesterday’s newsletter that the Democrats need to play by their own rules in the battle over the next US Supreme Court justice. To wit: No Senate confirmation of lifetime appointments to the highest court in the land until the American people know their president did not conspire with the Russian government to win the presidency, and did not obstruct justice in the determination of that fact.
Thanks be to God at least one Democrat is already (softly) beating this drum. US Senator Cory Booker, of New Jersey, is leading the way in building a rhetorical front over the next justice. During a hearing Thursday, and then on MSNBC, Booker said it would be inappropriate for the president to appoint a justice who may end up deciding matters relevant to Special Counsel Robert Mueller’s investigation. He got bogged down in the details, but his efforts were the beginning of a clear message.
But this much bears repeating: There is no stopping President Donald Trump or Senate Majority Leader Mitch McConnell from moving forward. They are going to get their justice, one as conservative as or more conservative than departing Justice Anthony Kennedy. The Democrats are going to lose this fight, but in losing they can prepare the battlefield for their next one. That entails doing something the Democrats probably don’t want to do: attack the US Supreme Court’s credibility.
This shouldn’t be hard with partisans. Democratic voters had grave doubts about the Supreme Court after it violated the sovereignty of the people in the 2000 election. The court won approval from Democrats by legalizing gay marriage and by narrowing defending abortion. But now that it’s clear Kennedy’s own son, Justin, is the president’s loan officer at Deutsche Bank (the only one in the world still willing to lend to him) and that Justin Kennedy encouraged his dad to retire, all bets are off.
In addition to saying no president should appoint a justice while under investigation for possible conspiracy with a foreign government, the Democrats need to say this: if the Republican don’t abide by this rule, they will be aiding and abetting Russian President Vladimir Putin’s life-long goal of undermining democracy around the world. Trump and McConnell won’t let that stop them, but in rushing a nominee through the Senate, they will appear to have confirmed the Democrats’ allegation.
Confirming the allegation is important for the next step. The new court will almost certainly trigger a wave of legislation in conservative states outlawing abortion, laws that will almost certainly be upheld by the new court. Roe v Wade, the decision that legalized abortion, is doomed. The Democrats will need to decide on what action then to take—specially whether to legalize abortion by statute. But when Roe does down thanks to two justices appointed by a president who may have cheated to win the presidency, the Democrats are going to have the justification and the political energy to reform the court, perhaps by adding two more justices or by establishing term limits. To save the village, the Democrats have to burn it down.
This isn’t only about the Supreme Court. While most of us have been preoccupied by every other way Donald Trump is degrading our republic, Republicans in the Senate have been confirming anyone who can fog a mirror to the federal judiciary faster than Krispy Kreme can make yummy hot doughnuts. They are doing this in a hurry, because (I’m guessing) they know time is running out. They know this presidency may end sooner than usual and even if it does not end soon, the tide of demographic change is posed to transform this country into something they won’t recognize. At some point they may lose legislative power. In larding the judiciary with hacks and knaves, they can beat down any progressive law that attempts to expand democracy to all.
For this reason, the Democrats must not stop with the Supreme Court. The party must create an infrastructure that researches, monitors and assesses every single federal judge confirmed by the current Senate with the express aim of discrediting any decision defies logic and offenses democracy. That aim must include impeaching every one of them with every legal and ethical mechanism available. The president won the election thanks to foreign influence. This is not debatable among intelligence leaders. That being the case, the Democrats are fully justified in mounting a years’ long campaign to purge the country’s judiciary of illegitimate federal judges.
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John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.