May 31, 2019 | Reading Time: 4 minutes

In War Over Judiciary, Liberals Are Losing

They pretend there's no war and pretend they didn't lose.

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I don’t have much to say about Mitch McConnell’s comments Tuesday. If one of the Supreme Court justices died in 2020, he said, the Republicans would fill that vacancy.

It was hypocritical. He contravened reasons for blocking Barack Obama’s pick, Merrick Garland. But … come on. We’re talking about McConnell here. No one in Washington, not even Donald Trump, is as amoral, odious, cynical and power mad as he is. If anyone is a political animal, it’s that guy. There’s nothing else to say.

But I do have something to say about the liberal response to McConnell’s comments, and it’s this: Face it, we lost. Badly. It was so bad the consequences won’t be felt for years. Nothing’s going to change that. What we can do is win in the future if we draw the right lessons from losing. Frankly, liberals are drawing the wrong lessons.


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We hear a lot about history eventually taking a dim view of the Senate Majority Leader. Susan Hennessey, of the Brookings Institution, said Tuesday, that McConnell will be “the true villain of some of the ugliest moments in this period of US history. What a craven, smug, appalling and unpatriotic man. If Republicans claim another seat, the case for the Democrats to pack the Court becomes very hard to argue against.”

All that’s true. All that, in terms of outcomes, means diddly. Maybe less.

Anyway, history might not record any such thing given that history is written by the winners. Losers appeal to history, as if that’s going to make things better. Appealing to history might have some strategic utility. It might persuade people to behave in preferable ways. But otherwise, it means nothing. Less than nothing.

Ditto for appeals to the Constitution. We’re told McConnell violated the letter and spirit of the founding generation. They meant the Senate should advise and consent. They didn’t mean the Senate should shirk its duty. Again, I agree. So what?

There’s nothing in the Constitution saying the Senate must sign off on a Supreme Court nominees, just as there’s nothing saying the Senate must conduct a trial after an impeachment in the House. That’s what you’d expect the Senate to do, and that expectation might be exploited for political and moral reasons. But there’s nothing to compel Senators. What McConnell did was constitutional. That’s the way it is.

Does that make it right? Hell no.

Just because something is constitutional doesn’t make it right. Slavery used to be constitutional! Liberals must get out of the habit of equating constitutional and moral, because we face future in which those two things are not going to be synonymous.

The Democrats should escalate the war over the judiciary until both sides find incentive to call for a ceasefire.

To quote John Finn’s Fracturing the Founding, we face a constitutional future stressing “absolute rights and unassailable liberties (especially speech and guns); state’s rights and a corresponding suspicion of the federal government; racial classifications recognized and legitimated by law; and [legal] privilege for white Christians.”

I’ve called this “intersectional apartheid.” You could call it more simply a return of a constitutional order that existed before women’s suffrage, before labor reforms, before anti-monopoly laws, and before Brown v the Board of Education. That is, before everything liberals believe is settled, but fascists believe is ripe for change.

It made sense to cry foul before McConnell blocked Garland. It was rhetorically useful to say history would take a dim view of him or that he violated the Constitution. But saying all that after the fact tells me liberals have not learned a damn thing.

We haven’t learned, as EJ Dionne argued Wednesday, that court-packing is already taking place. The Democrats need not fret about norm-busting. It’s busted. But mainstream liberals like Hennessey, whom I adore, are willing to give McConnell a second chance, saying “if Republicans claim another [justice], the case for the Democrats to pack the Court becomes very hard to argue against.” Argue?

It’s settled. Or should be.

If the other side wants to play ball, fine. If it doesn’t, don’t keep playing ball. In other words, this is war, except only the Republican Party appears to understand the existential importance of controlling the courts. McConnell sabotaged what had been a norm, a reasonable expectation that the party in power will get its due. He smoked that norm. It’s gone. Yet the Democrats are pretending it isn’t up in smoke.

The next time the Democrats control the Congress, they should reverse what the Senate has been doing. It has stopped being a lawmaking body. It’s a judge-making body, mass-producing federal judges like so many widgets. Do it backwards.

Once they control of the Congress, the Democrats should impeach and remove as many judges as they can using the rationale that they were appointed by an illegitimate president aided in victory by a foreign power. This is a more radical suggestion than court-packing and term limits, but the political outcome would probably be similar. The GOP would take its turn once it again controlled Congress.

It’s fair to call this a race to the bottom. But it’s wrong to say it’s unfair. To “play by the rules” when there are no rules is foolish. The Democrats should escalate the war over the federal judiciary until both sides find incentive to call for a ceasefire.

Obviously, I don’t know when that would be. But in the short-term, the Democrats would not suffer, electorally. Indeed, the base of the party would likely cheer.

Liberals are smart people. They should act like it.

—John Stoehr

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John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.

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