September 21, 2020 | Reading Time: 4 minutes
What can the Democrats do now?
First, build a majority recoiling from GOP's naked power-lust.
It may not look like it (I do my best to hide it), but I normally struggle to gather my thoughts to write Monday mornings. There’s just something about taking two days off. It requires more oomph to get the mind up and running again. Given the passing of Justice Ruth Bader Ginsburg Friday evening, today’s struggle is going to be harder.
First, I should counsel skepticism. Be careful when reading about the politics of her replacement, especially as it pertains to the presidential election. It’s not clear it will make a difference. It’s not clear it won’t. Whether it does is going to take time, more than most reporters have patience for. You can expect to see “game changer” and other colorful turns of phrase suggesting a dramatic upheaval to an otherwise relatively stable election. Understand, though, that that’s not established, and can’t be. Not yet.
The likelihood of stopping McConnell is probably zero. The trick is using defeat to win in order to enact court reforms.
Expect also to see verbiage masking who’s doing what to whom. The press corps “must demarcate unblurred lines of accountability,” but is already failing, wrote CJR’s brilliant young critic Jon Allsop. “Recognizing [Mitch] McConnell’s unique hypocrisy will be essential to this, as will avoiding language that gamifies the nomination process as entertainment; or that casts Republican dirty tricks in passive, impersonal terms (‘political struggle,’ ‘partisan brawl’); or that suggests Democrats are the real radicals if and when they raise court reforms as a possible response to said dirty tricks.”
Second, I should caution against cynicism. McConnell, the Senate majority leader, said in 2016 that he could not in good conscience allow a vote for Merrick Garland, Barack Obama’s nominee, to go to the floor during an election year. The American people had to have a say, he said. He made up that “rule” to get something he wanted (Neil Gorsuch on the US Supreme Court). He’s throwing out that “rule” to get something similar. Within hours of news of Ginsburg’s death, McConnell said the Senate would confirm Donald Trump’s nominee. (More on why he didn’t say when in a moment.)
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The Democrats, led by Chuck Schumer, are rightly crying foul. They are holding the Republicans to their own standard. In truth, McConnell isn’t being hypocritical. He’s just being a hard-shelled partisan. Most normal people are not, and won’t be, that cold-blooded, though. The Democrats know it. It’s tempting to be cynical and say that complaining about McConnell’s disgusting hypocrisy is useless. (“It won’t work. Don’t bother.”) But he’s not the Democrats’ true audience. Their true audience is normal people recoiling from McConnell’s naked power-lust. It’s people who might be a majority supporting court reforms. Schumer, who is normally and infuriatingly squishy, said Saturday nothing is off the table, a strong signal that if McConnell and the Republicans proceed, there will be a price to pay if the Democrats take the Senate.
That isn’t the Democrats’ immediate concern. Right now, they are trying to force vulnerable Republican senators to break with McConnell. So far, Susan Collins of Maine and Lisa Murkowski of Alaska have said they’re against confirmation hearings before Election Day. If they get two more on board (perhaps Cory Gardner of Colorado or Mitt Romney of Utah), the Democrats will have won a small victory, but they will not yet have won the battle. (They will have at least prevented the awful potential of five friendly justices deciding the outcome of the election should Donald Trump throw it to the court.) Remember McConnell is a turtle-necked nihilist. Nothing but power matters to him. If he can’t get a justice before the election, he’ll get one afterward. Not even Collins and Murkowsky have ruled out confirmation during a lame-duck session of the Congress. Yes, McConnell would do this even if Trump lost. He’s that terrible.
This is where I must talk to you straight. The question isn’t whether the Democrats can stop the Republicans from installing a new justice, giving the Supreme Court a 6-3 conservative super-majority (meaning Gorsuch would be the swing vote, which means there won’t be any swing votes). The likelihood of that happening is probably zero. McConnell has the means and the will to make it happen. The real questions, the ones we should put our energies into answering, are first, how much can the Democrats slow down this process, which I have already discussed; and second, how are they going to respond to losing? I don’t know, but I suspect the base of the party, especially women fearing the fate of Roe, will not accept the same-old gee-whiz reaction. Actually, don’t believe me. ActBlue, a Democratic fund-raiser, raised $100 million between the time of Ginsburg’s death and 2 p.m. Sunday. Before Brett Kavanaugh, liberals were horribly complacent about the court. Post-Kavanaugh, not so much.
In any case, the Democrats must take the Senate. With the Congress unified, they could enact reforms restraining the court’s conservatives. Without control, though, they can do little but watch the republic burn. I’m struggling to make sense of politics this Monday after Ginsburg’s passing. But it’s pretty clear, even to me, that the Senate is more important to the fate of the nation than even the fight over her replacement. The Democrats must slow down losing to buy enough time for Joe Biden to move a majority of Americans in his direction, so that the party can win in the future.
John Stoehr is the editor of the Editorial Board. He writes the daily edition open and available to all. Find him @johnastoehr.