Those of you waking up this morning to a war for the soul of the American judiciary have not been paying attention. This war began decades ago when right wing donors began actively seeking to remake the courts. They made the choice to place ideology over principle then.
McConnell long ago tossed tradition and fairness aside. The embrace of a corrupt unfit traitorous president was the clearest sign of this. So long as he gave them judges all his other flaws would be accepted. Look at the struggle of McGahn in the White House for further evidence of this.
He knew Trump was violating the law and that it put him at personal risk. Yet he kept on his role because he felt appointing Supreme Court justices was worth the risk. (See Michael Schmidt’s book for this story, well told.)
The case of Merrick Garland and the eventual nomination of Gorsuch to fill the Scalia slot illustrates this. The curious timing of the Kennedy departure and the Kavanaugh battle illustrates this. The fact that the Senate has been approving judges recently when they could not bring themselves to assist the tens of millions of Americans suffering in this dual public health-economic crisis illustrates this. The speed with which Trump and McConnell committed to filling Ruth Bader Ginsburg’s seat–acting just hours after her death–illustrates this.
The GOP long ago recognized that the most important judicial appointments are for life. They have prioritized justices and judges who share their political views over those who have even a modicum of competence. Ideology above all else has been their North Star.
Meanwhile, Democrats have howled and moralized and lamented and lost battle after battle. Because Democrats have played by the old rules and because repeatedly they have been outmaneuvered politically. While Democrats decry the GOP as being “unfair” or “hypocritical,” McConnell and the Federalist Society laugh up their sleeves. They are winning. They have been winning for years. In some ways, it is already too late to do anything about it on critical issues–those that will be decided by the current eight person court–issues like ACA, and perhaps issues that have to do with challenges that may emerge related to the upcoming election. (Remember Bush v. Gore. As I said, the GOP has been playing this game better than the Democrats for years and with devastating consequences.)
Now, the Democrats need to shift their tactics. The only way to defeat a scorched earth opponent is with scorched earth counter-measures. First, they must make it clear that they will mobilize vast resources to defeat GOPers who support a vote for RBG’s replacement before inauguration.
And they must do that. They must take back the Senate. Vast monies poured into Dem coffers last night after the announcement of RBG’s death, if you can help ensure that continues, you must. Dems must focus on the seats they can win.
Naturally, Dems must also win back the presidency. If either of these efforts falls short, the GOP will consolidate past victories and a generation will face a corrupted, debased, court system that is deeply biased and threatens vital personal liberties and our democracy itself.
Every tactic possible to delay the RBG replacement vote must be embraced. And the message must be sent unmistakably, if the GOP forges ahead with the effort to install another Trump justice before January 20, then the Dem response will be unsparing.
The filibuster will be (as it should be in any case) set aside. But stacking the Supreme Court and the lower levels of the federal judiciary should be on the table. It seems striking but the number of justices on the Supreme Court or elsewhere within our system is mentioned nowhere in the Constitution. An effective, fair, balanced, above all else just system is what is required. Numbers of seats on courts is secondary.
Dems have been ineffective, wringing their hands, clutching their pearls, for too long.
While the GOP has been fighting a war, we have been playing at some high school game of Model Congress. Enough. Too many great issues are at stake. Voting rights. A woman’s right to choose. Combatting climate change. Ensuring other civil rights.
Without an effective court system, imagine what a corrupt President like Trump and a dangerous Attorney General like Bill Barr can get away with. They will place themselves above the law. They will make a mockery of our democracy. And once gone, it will be lost forever.
We are presented with the same questions that confronted the founders. Will we tolerate leaders who place themselves beyond the reach of justice? Will we tolerate a system that empowers the few? Will we invite tyranny back to these shores?
This is no longer an abstraction. We are starting well behind. We have lost some of the critical battles in a war against us all in which we have failed to engage. Now, there is no margin for error. We must not fail in any of the key challenges before us.
McConnell and the GOP must be stopped. The dark money from the coffers of the right cannot be allowed to dictate the demise of our system via the gutting of its values. This morning we must turn our grief at the loss of a true hero like Ruth Bader Ginsburg into something more.
We must see her, one of the great fighters in our history for justice, a champion of the ideals of democracy, as an inspiration and we must fight as she did throughout her career, against the odds, with a clear focus on the outcome that can preserve, restore and elevate our system.
We must begin now. There is no time to lose and a country and system we cherish at stake.
