June 28, 2018 | Reading Time: 4 minutes

The Democrats’ New SCOTUS Rule

No confirmation until we know Donald Trump did not conspire with Russia.

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The Democrats made their first mistake in the battle over the next US Supreme Court justice. Within hours of hearing of Justice Anthony Kennedy’s retirement, the Democrats said Donald Trump’s nominee should be confirmed after the midterms.

That may not seem like blundering. After all, that’s what Senate Majority Leader Mitch McConnell said should happen in 2016. He said the Senate should not even debate the nomination of Merrick Garland until the next president is elected.

It was an unprecedented maneuver that has yielded unprecedented results. With Justice Neil Gorsuch on the bench, the high court has ruled against labor rights, voting rights and religious freedom (the Muslim ban). Now, with Kennedy’s imminent exit, the court is on the verge of shifting aggressively rightward, creating opportunities to eviscerate liberal benchmarks while consolidating conservative power.

The Democrats are searching. The first thing they landed on was trying to hold the Republicans to their own rule. No confirmations in an election year, they said. That’s the McConnell Rule, they said. But that was their first mistake. Why?

McConnell doesn’t care about rules, his or anyone’s. He’s immune to accusations of hypocrisy. Allies will defend him. He is focused on consolidating conservative power by way of judicial fiat over an electorate that’s increasingly diverse and liberal.

The Democrats ought to lead the way in debating the nominee’s strengths and weaknesses, but they should not hamstring themselves with rules. Anyway, the rules have served the Democrats badly. The Washington Post’s Matt O’Brien reminded us that the Democrats have won the popular vote in six of the last seven presidential elections and have only four—four!—Supreme Court justices to show for it.

The Democrats need to play by their own rules.

To wit: No confirmation of lifetime appointments to the Supreme Court until the American people know Trump did not conspire with the Russian government to win the presidency, and did not obstruct justice in the determination of that fact.

Here’s the difference. McConnell is going to break his own “rule” (he’s planning a vote for November). The Democrats can say, “Hey, no fair!” They can look like the aggrieved ones. They can look like they’re trying to be on the level with the hope of peeling off a few voters. That’s it. They get little but being the Party of Fairness.

Fine, great, but I want more. I want to force McConnell and the Republicans to deny allegations that confirming a lifetime appointment right now, without knowing whether the president conspired with a hostile foreign power, is itself aiding and abetting a hostile foreign power. I want to see McConnell deny helping the enemy.

We know McConnell is going to move forward, and we know the Democrats have virtually no means of stopping him. Why settle for looking like the Mr. Nice Guy?

The Democrats can win something even while losing. If they press forward, saying no president under investigation for obstructing justice should be allowed to appoint a Supreme Court justice, they can create political conditions in which rushing to confirm actually proves the allegation the Republicans are helping Russia.

Moreover, after Special Counsel Robert Mueller finishes his investigation, in which he’s almost certainly going to find some evidence of conspiracy (this is evident), the Democrats can say 5-4 rulings vaporizing liberal benchmarks are illegitimate, because the president cheated to win the right to appoint justices. Moreover, due to illegitimacy, the court must be reformed with term limits or two more justices.

I understand what I’m saying. I’m saying the Democrats ought to join the Republicans is deepening the already deep levels of mistrust in the government. That may not be fair. That may even be risky. But given the stakes, the risk is probably worth it.

It is not an overstatement to say the following. As soon as the Senate confirms a nominee, two dozen states will almost certainly outlaw abortion—overnight. That will trigger legal challenges fast-tracked to the US Supreme Court, where the five conservative justices will almost certainly uphold state laws banning abortion.

Abortion is one issue. There are more. Say goodbye to affirmative action. Say goodbye to the Affordable Care Act and other safety net programs, like food stamps. Perhaps also the enforcement of civil and voting rights. It’s conceivable that the court would decide that evangelical Christians are a protected class. In general, the court would privilege the few over the many, and beggar the idea of republican democracy.

The Democrats can’t stop Trump. They have 49 votes in the Senate. McConnell needs only 51 to confirm. Senate Minority Leader Chuck Schumer could deny a quorum, thus shutting down the Senate, but he’d need one maverick Republican. That’s unlikely, though I suppose with John McCain on his deathbed, anything’s possible.

In any case, the Democrats must play hardball.

But only by their own rules.

New features!

I’m happy to announce new features here at the Editorial Board Newsletter. Now you can “like” daily posts and you can comment directly on the website. There’s more where that came from. Encourage your friends to sign up! Thanks. —JS

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

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