Will Schumer And The Senate Democrats Go To The Wall To Stop An Illegitimate SCOTUS Appointment?

 

AOC: "We need to make sure that we mobilize on an unprecedented scale to ensure that this vacancy is reserved to the next president, and we must use every tool at our disposal."

Early yesterday, Alisyn Camerota hosted Jeffrey Toobin on CNN's New Day and I guarantee you, establishment Democrats did not like what they heard. She spoke with him about what the congressional Democrats can do if Trump and his enablers ramrod through an extreme-right Supreme Court justice. "Democrats are great about talking big," said Toobin, clearly referring to Chuck Schumer, "but we’ll see if he has the-- if he and the other Democrats have the guts to do anything. If they retake control of the Senate, will they really add the two seats on the Supreme Court? ... Because they’re weak and they’re wimps and they’re afraid. We think about Bush v. Gore and, which David [Boies] argued. In 2016, Al Gore said no street protests. This is just a legal process, while David saw in Tallahassee and Washington the Republican forces massing against them, literally on the streets. There is a difference to how Democrats and Republicans go about these fights, and we’ll see if Democrats learn anything from Republicans here. Yes, it’s interesting that Chuck Schumer said nothing is off the table, but that’s not a commitment to do anything."

The Democrats are not without weapons in this battle, just without leadership that  has the heart and the guts to wield them. Schumer should tell McConnell in no uncertain terms that if the Democrats win back the Senate in November, he will propose legislation to make Puerto Rico and the District of Columbia states, something the GOP dreads. It would probably pass but even if it doesn't, Marco Rubio, Rick Scott and Pat Toomey will put their reelections in jeopardy by voting against Puerto Rican statehood. Then there's the much discussed concept of going back to 9 judges (1837), although I have a tip for Schumer, In 1863, Congress passed a law establishing a Supreme Court with 10 justices. He should threaten 10 and then compromise on 9. It wasn't until 1869 that the 7-judge court was established.

Writing last week for the New Yorker Toobin himself reported on a less-discussed threat conservatives would find unpalatable. He wrote that Demand Justice, founded by Christopher Kang, who helped run judicial selection for Obama, and Brian Fallon, a former Schumer aide, "argue that the next President should not nominate any judicial candidates who come out of the world of corporate law. As Kang and Fallon, two insiders to the process, point out, even in Democratic administrations, there is a recurring pattern among nominees to the federal bench: 'A typical nominee might have an Ivy League degree and clerkships with one or more respected federal judges,' they write, in a new article in The Atlantic. 'But perhaps no qualification is more prevalent than prior work at a major private-sector firm, representing the interests of large corporations.' As they note, roughly sixty per cent of federal appellate judges come from corporate firms."

It would be hard to imagine Schumer backing anything like that-- not to mention Biden, but if it's part of an informal, off-the-record package of threats to throw at McConnell...

Toobin claims that "The moment is especially ripe for this proposal. The story of the Roberts Court is its embrace of corporate power. The court has consistently ruled against labor unions and for big-dollar campaign contributors, polluters, and other wealthy interests. Justices Neil Gorsuch and Brett Kavanaugh, Trump’s appointees to the court, have embraced this agenda and appear likely to push the Court even more dramatically in this direction. Both showed a particular interest in limiting regulations during their time as circuit-court judges. Sheldon Whitehouse, a senator from Rhode Island, has been one of the few Democratic politicians to focus on this issue of corporate power in the courts; he’s even written a book about it. By 2021, it will be especially important to establish some sort of counterweight to this trend, because Trump will have made so many appointments, and because of the possibility of Supreme Court vacancies... Kang and Fallon write, 'There are plenty enough highly qualified individuals with other backgrounds-- civil-rights litigators, public defenders, and legal-aid lawyers-- that the next president can afford to make identifying new kinds of candidates a priority.'"

On Friday, the New Yorker published an essay by Jane Mayer, suggesting that McConnell cares more about keeping the GOP Senate majority than about putting another rightist on the Court. McConnell, she wrote, is as immune to shame as The Donald is. Norman Ornstein told her that "McConnell will do anything that serves his interests. We know that."

A former Trump White House official told her that "McConnell’s been telling our donors that when R.B.G. meets her reward, even if it’s October, we’re getting our judge. He’s saying it’s our October surprise."

But now that the moment is here, the calculation isn’t quite so simple. On Friday night, McConnell released a statement vowing that a Trump nominee “will receive a vote on the floor of the United States Senate.” While McConnell’s obstruction of Obama’s nominee, Merrick Garland, made him the bane of liberals, he has regarded it with pride as the single “most important decision I’ve made in my political career.” He and many others believe it handed Trump his victory by motivating the politically powerful evangelical bloc to vote for Trump, despite their doubts about him, because he promised to fill the Court vacancy with a social conservative. It’s entirely possible that the same scenario will play out again this November, with Trump and McConnell offering another enticing gift to evangelicals.

But McConnell is also what Ornstein calls “a ruthless pragmatist,” whose No. 1 goal has always been to remain Majority Leader of the Senate. He’s made the conservative makeover of the federal court system his pet project, but if he faces a choice between another right-wing Justice or keeping his control of the Senate, no one who knows him well thinks he’d hesitate for a moment to do whatever is necessary to stay in power. In fact, back in the summer of 2016, when it looked like Trump would lose to Hillary Clinton, far from being distressed at his party’s dim prospects, McConnell was savoring the probability of being the single most powerful Republican in the country, according to a confidant who spoke with him then.

The problem for McConnell now is that it may be impossible for him to both confirm a new Justice and hold on to his personal power as Majority Leader. A power grab for the Court that is too brutish may provoke so much outrage among Democrats and independents that it could undermine Republican Senate candidates in November. As he knows better than anyone, polls show that Republican hopes of holding the Senate are very much in doubt. If Joe Biden is elected, enabling a Democratic Vice-President to cast the deciding vote in the Senate, Democrats need only to pick up three seats to win a majority. And, at the moment, according to recent polls, Democratic challengers stand good chances against Republican incumbents in Maine, Arizona, and Colorado. Democrats also have shots at capturing seats in South Carolina and Iowa. [She's leaving out North Carolina, Montana, Alaska and Georgia.]

No one knows for sure how the politics of the Ginsburg seat will play out in close Senate races. But the issue likely puts some of the most endangered Republican candidates in very tough spots. In Maine, for instance, Susan Collins can’t afford to either alienate the Trump base by voting against a conservative Court pick or to alienate moderate Republican women, who don’t want a radically right-wing judiciary. Late on Saturday afternoon, Collins contradicted McConnell’s line, saying in a statement, “In fairness to the American people, who will either be re-electing the president or selecting a new one, the decision on a lifetime appointment to the Supreme Court should be made by the president who is elected on November 3rd.” Hours before the news of Ginsburg’s death on Friday, Lisa Murkowski, an independent-minded Republican senator from Alaska, said that she thought it was too late for a confirmation vote, telling a public-radio interviewer that “I would not vote to confirm a Supreme Court nominee.”

Given those complications, Ornstein predicts, McConnell may “use some elements of delay.” McConnell conspicuously laid out no timetable when promising a Senate vote for Trump’s nominee. Ornstein speculates that he may hold off on a vote until after the election to provide cover for his members but, meanwhile, obtain private pledges of support from them. It would mean he’d have the votes to ram a confirmation through the Senate during the lame-duck period after the election, regardless of who has won the White House.

Senate watchers suggest that the first thing that McConnell probably did after learning of Ginsburg’s death was to call every member of his caucus, in order to make an assessment about whether it would help or hurt his members to force a Supreme Court confirmation vote. On Friday night, he also issued a thinly veiled warning to his caucus members to shut up, or, as he put it, “be cautious and keep your powder dry.” According to the Washington Post, which obtained a copy of the McConnell letter, he warned, “For those of you who are unsure how to answer, or for those inclined to oppose giving a nominee a vote... this is not the time to prematurely lock yourselves into a position you may later regret.”

Keeping the Republican senators in line was also among the top concerns McConnell had when Antonin Scalia unexpectedly died, in February, 2016. McConnell immediately coördinated with Leonard Leo, then the executive vice-president of the powerful conservative legal group the Federalist Society, to plot a path forward that would avoid what Leo reportedly called “a cacophony of voices.” To keep control, they came up with a plan. Although eleven months remained in the President’s second term, McConnell immediately announced he would block a vote for any Obama nominee because it was an election year, and so he argued, “the American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President.” The speciousness was breathtaking. Since the nation’s founding, the Senate had confirmed seventeen Supreme Court nominees in election years. Moreover, the “American people” had made a choice-- they had elected Obama. But, despite declaring themselves as conservatives who respect precedent, McConnell, in consultation with Leo, simply invented a new rule to cover their radical defiance of past precedents and accepted norms.

Facing the same kind of unconstrained power play by McConnell again, the Democrats have few procedural weapons at their disposal other than taking radical measures themselves. For more leverage, Brian Fallon, the executive director of Demand Justice, a liberal group, says that if McConnell forces a confirmation vote before the election, Democrats need to threaten to expand the size of the Supreme Court if they win control of the White House and Senate in November. He believes there may be support for this even from unlikely moderate Democrats, if McConnell tries to strong-arm a vote. Senator Tim Kaine, of Virginia, who is ordinarily a mainstream Democrat, has said he could support enlarging the court as a tactic, if the Republicans force a confirmation vote. The Democratic senator Ed Markey, of Massachusetts, and Congressman Jerry Nadler, of New York, have also embraced the idea. Fallon also suggested that if a Trump nominee has yet to be confirmed after the election, and if Biden wins the White House, he, as President-elect, should name his own nominee, creating a scenario in which there are two nominees backed by opposing parties simultaneously duelling for confirmation. The Democratic members of the Senate, he argues, should decline to attend any courtesy calls, or confirmation hearings meanwhile, for any lame-duck Trump nominee.

ACB by Chip Proser

David Cole, the national legal director for the American Civil Liberties Union, also called on Democrats to fight rather than fold. He told me, “I think we should demand that the Senate respects her dying wish,” referring to a statement from Ginsburg released after her death by her granddaughter Clara Spera, which said, “My most fervent wish is that I will not be replaced until a new President is installed.” He argued that although what the Senate did to Garland “was wrong, if they have a shred of consistency, they should hold off until after the Inauguration. And if not, progressives should take to the streets.”

Ornstein foresees the potential for a historic political rupture if Trump, who lost the popular vote in 2016, and McConnell successfully seize a Supreme Court seat for a second time. “If McConnell gets away with this again, this will be a Court like none we have ever seen in our lifetime. We will be back to the pre-New Deal era,” Ornstein said, referring to one of the most conservative courts in the last century. He predicted, “If McConnell does this, it’s not just an act of hypocrisy, it’s one of the most dangerous breaches we’ve seen in our lifetime. There will be consequences. I think there would almost be revolution in this country.”