Any President Could End Judicial Review With a Single Sentence

Krystal Ball explains judicial review

by Thomas Neuburger

"The weird thing about judicial 'originalism' is that the explicit principle of judicial review is nowhere to be found in the Constitution."
—Ryan Cooper, "Democrats have a better option than court packing"

The Supreme Court has no mechanism to enforce a power it was never given. A single sentence could end their having it.
—Yours truly

It's refreshing to finally read someone other than Thom Hartmann (and myself, thanks to Mr. Hartmann) agree that Marbury v. Madison, the 1803 Supreme Court decision in which the Supreme Court unilaterally gave itself the power to overturn Congress, was wrongly decided.

Read the last part of that sentence again. First: The Constitution did not give the Supreme Court power to overturn Congress. The Court was designed simply to be the highest rung in the ladder of courts of appeal. The right to overturn Congress was given to the Court by the Court.

Then consider: What would happen if it was wrongly decided? "Law" that was decided by the Court would be overturned — both Roe v. Wade and Citizens United — but more, a two-and-a-half-century-long practice of the Court overturning laws, would be overturned. The supreme importance (sorry) of the Court in our lives would be overturned.

We'd no longer be slaves to nine justices and their decisions; we'd be slaves to our laws instead, for good or ill, as the Founders deliberately intended.

In many ways, the practice of "judicial review" by the Court is the most undemocratic element of a system that contains many undemocratic elements, from the Electoral College to the Senate itself. That undemocratic element ... would end.

The Fight to Replace RBG

Now consider the fight over the successor to Ruth Bader Ginsberg, the justice who recently passed away. Why is this battle so consequential? Only because the Court and its power is consequential.

But what if it wasn't? What if the Court, stripped of the power to overturn Congress, was simply a higher court of appeals?

If that were the case, the escalating war between pathological Republicans and status quo-serving Democrats for control of the Court would be made entirely moot. We'd see no more headlines like the ominous "Ginsberg's passing brings political chaos". Who would fight to the death to control the Court if the Court had so much less power?

"Rule by the bench" would largely disappear from American lives, and in the main our lives would be better. Yes, a "constitutional right of privacy" may not have been discovered (Griswold v. Connecticut) if judicial review had never existed, though Griswold leans heavily on the Fourteenth Amendment, but also, corporate personhood (Santa Clara v. Southern Pacific) and the free speech rights of money (Buckley v. Valeo, Citizens United) would both have died prior to conception.

In short, without judicial review, we'd have to rule ourselves via our laws and our lawmaking process. Perhaps that would increase the percentage of people voting.

Does the Court Control the President?

But let's look at a simple specific case. What if Congress expands Medicare and the Court says No, that isn't constitutional? Does the President have to do what the Supreme Court orders? The short answer, frankly, is no. Would that not solve our "Supreme Court problem" in an instant, with no muss or fuss whatever?

It's hard to say that more simply, but I'll try. What if the president, instead of obeying the Court, just listened and moved on? The extraordinary power of the Court over American life would simply and instantly end. No further action needed.

The Origins of Judicial Review

Here's Ryan Cooper to explore this in more detail:

[T]here has been comparatively little attention to the simplest and easiest way to get around potentially tyrannical right-wing justices: just ignore them. The president and Congress do not actually have to obey the Supreme Court.

The weird thing about judicial "originalism" is that the explicit principle of judicial review is nowhere to be found in the Constitution. All of that document's stipulations on how the courts are to be constructed are contained in one single sentence in Article III: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." 

Note that judicial review, a right "discovered" in 1803, was itself an act of partisan political manipulation:

Actual judicial review was a product of a cynical power grab from Chief Justice John Marshall, who simply asserted out of nothing in Marbury vs. Madison that the court could overturn legislation — but did it in a way to benefit incoming president Thomas Jefferson politically, so as to neutralize his objection to the principle.

So the Court gave itself this power to benefit Jefferson in a dispute with Madison, and did it in a way that made Jefferson less likely to object.

The following describes well and succinctly the obvious political background to the case. It's roots are in the conflict over appointments between an outgoing, lame duck administration, and an incoming administration of the opposite political party:

In the weeks after the Federalist president John Adams lost his bid for reelection to Democratic-Republican candidate Thomas Jefferson in 1800, the Federalist Congress increased the number of circuit courts. Adams placed Federalist judges in these new positions. However, several of these 'Midnight' appointments were not delivered before Jefferson took office, and Jefferson promptly stopped their delivery as President. William Marbury was one of the justices who was expecting an appointment that had been withheld. Marbury filed a petition with the Supreme Court, asking it to issue a writ of mandamus that would require Secretary of State James Madison to deliver the appointments. The Supreme Court, led by Chief Justice John Marshall, denied the request, citing part of the Judiciary Act of 1789 as unconstitutional.

Justice Marshall and the rest of the Court split the baby, gave Marbury the right to his commission, but said it couldn't be granted because one part of the law that granted it conflicted with one part of the Constitution. From the same source:

Though Marbury was entitled to his commission, the Court was unable to grant it because Section 13 of the Judiciary Act of 1789 conflicted with Article III Section 2 of the U.S. Constitution and was therefore null and void.

So here we are, two and a half centuries later, ruled by a Court that's almost always far more conservative that the nation it rules.

Jefferson himself, by the way, hated judicial review. He called it the "despotism of an oligarchy ... Our judges are as honest as other men, and not more so."

Ending Judicial Review With a Single Sentence

The solution is simple — the president can just ignore the Court, which has no constitutional mechanism to enforce a power it was never given:

As Matt Bruenig argues at the People's Policy Project, it would be quite easy in practical terms to get rid of judicial review: "All the president has to do is assert that Supreme Court rulings about constitutionality are merely advisory and non-binding, that Marbury (1803) was wrongly decided, and that the constitutional document says absolutely nothing about the Supreme Court having this power." So, for instance, if Congress were to pass some law expanding Medicare, and the reactionaries on the court say it's unconstitutional because Cthulhu fhtagn, the president would say "no, I am trusting Congress on this one, and I will continue to operate the program as instructed."

"No, I'm trusting Congress on this one, and I'll continue to operate the program as Congress instructed."

Presto-chango, no more judicial review. Gone forever. No more ideological battles over Supreme Court seats. No more retaliatory court-packing schemes and appointments. All gone forever, gone in a single stroke.

The good news is, this is all a president would actually have to do. The the only downside is, some president would actually have to do it.
    

A Man Is Only As Good As His Word? So How Do Closet Cases, Like Lindsey Graham Survive In Electoral Politics?

 

I'm gay. When I realized it, I was living in Amsterdam. I went to a psychologist and told him. He looked at me oddly and said, basically, "So? You need me to give you the addresses of gay bars?" Then I flew to the U.S., for my first visit back home in 4 years, to tell my mother. Her response was to tell me I couldn't borrow her wigs. Years later my first corporate job was working for a gay man. My sexuality never held back my career and I rose to be president of the parent company. I'm glad I never went down the closet road. People in closets live a life reflexively and usually increasingly dishonest. They lie about who they are, what they are and, eventually, about everything and start living a life where serial dishonestly becomes the essence of being, more so than any semblance of honesty. It's the slipperiest of slopes to start down and so, so tragic for so many people.

It's the slope poor Lindsey Graham felt he had to go down if he was going to be a successful politician in South Carolina. And, his life has been one gigantic lie, both professionally and personally. "Everyone knows" and even colleagues and acquaintances who find him likable, simpatico and amusing, all tend to pity him. And now it may be catching up with him politically, as an unlikely Democratic opponent has him locked in a what should be an easy reelection campaign but is basically tied and too close to call.

On Saturday, Washington Post reporters Sean Sullivan and Seung Min Kim wrote that 4 and a half years ago Lindsey "sat across a conference table from his colleagues and issued them a dare. 'I want you to use my words against me,' said Graham, a South Carolina Republican with a flair for drama. Pointing with his index finger, Graham continued: 'If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.' On Saturday, Graham was singing a different tune, pledging support for President Trump in 'any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg.' The stark turnabout from 2016 marked the latest chapter in Graham’s dramatic reinvention of himself during the Trump presidency, morphing from an old-school Senate institutionalist and bipartisan dealmaker into a stalwart soldier for the president’s agenda."

Democrats and other opponents of The Donald very much would like to take Graham up on his offer-- to hold his words against him. I don't know how effective this Lincoln Project ad will be with South Carolina voters, but I suspect someone will figure out exactly how to hold his words against him in a way that will cause him no end of political pain. After all, no one likes a liar... well, except for Republicans who apparently love liars:





"Graham," our Post duo reminded us, "is chairman of the powerful Senate Judiciary Committee charged with processing Supreme Court nominees, and he is in the midst of a competitive reelection campaign that could factor closely into the fight for control of the upper chamber. His comments Saturday, coming after less-decisive statements in the hours after Justice Ruth Bader Ginsburg’s death Friday, amounted to the latest indication of how Republican leaders are rallying quickly around a strategy of seeking to fill her seat this year. That prospect has stoked widespread outrage among Senate Democrats, who are calling Republicans hypocrites for the move after blocking President Barack Obama’s Supreme Court nominee in 2016 because they said the president chosen by voters that fall should make the pick.

“There’s no doubt everything will be sort of on the table if we’re thrown into a world where you can’t trust somebody’s word and precedents get changed at will to fit your priorities of the moment,” Sen. Chris Murphy (D-CT) said in response to Graham’s decision to align behind Trump and go back on what he said in 2016.

During Saturday’s call, Senate Minority Leader Charles E. Schumer (D-NY) used similar language, saying that if Senate Republicans move forward with whoever Trump nominates, “nothing is off the table for next year” should Democrats win control of the chamber. That appeared to be a reference to structural changes to the court proposed by liberal activists such as expanding the number of justices-- a proposal that has sparked some disagreements among Democrats.

Republican leaders appeared determined to press ahead swiftly to fill the court vacancy with a conservative jurist. Senate Majority Leader Mitch McConnell (R-KY) promised Trump during a Friday phone call that his nominee would get a vote in the Senate, according to people familiar with their conversation who, like others, spoke on the condition of anonymity to discuss the private conversation.

Trump told McConnell he liked Judge Amy Coney Barrett of the U.S. Court of Appeals for the 7th Circuit and Barbara Lagoa of the 11th Circuit, according to two people briefed on the discussion.

“We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court Justices,” Trump wrote on Twitter Saturday. “We have this obligation, without delay!”

...Less clear is how rank-and-file Republican senators will respond, with many in tough reelection races in states where Trump is not popular. Republicans hold a 53-to-47 majority in the Senate, meaning they can afford to lose no more than three members in a confirmation vote, should the entire Democratic caucus unite against Trump's nominee.

They have already lost one.

“I do not believe that the Senate should vote on the nominee prior to the election,” Sen. Susan Collins (R-Maine), who is in a tough reelection fight, said 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.”

Collins’s reservations contrasted sharply with the comments from Graham, who is seeking a fourth term in the Senate. The contest has been tougher than many expected in a ruby-red state Trump won easily in 2016, with recent polls showing Democrat Jaime Harrison in close competition with Graham.

Now Graham will be at the center of what will likely be one of the most contentious confirmation battles in history, affording him an opportunity to demonstrate his loyalty to Trump. But some Democrats say his position could help amplify the arguments against his reelection.

“A lot of folks miss the Lindsey of old-- and that’s why this race is so competitive,” said Steve Benjamin, the Democratic mayor of Columbia, S.C. “When it comes time to do what’s right and maybe not popular,” Benjamin said, “it can be difficult for some.”

Harrison, one of his party's fast-rising African American stars, sounded similar notes. “My grandpa always said that a man is only as good as his word. Senator Graham, you have proven your word is worthless,” he wrote on Twitter.

Writing for The Atlantic, Edward-Isaac Dovere offered a glimpse into what Republican senators are saying in private and off the record. "Whispering Republicans," as he termed them, talk about how they hate The Donald and then back him in public-- to the media and, of course, with their votes. The GOP is absolutely one of the country's two spineless, jellyfish parties. "The secretly apostate Republican senators," wrote Dovere, "have two choices: They can support a president they think is a threat to American democracy while also violating Senate Majority Leader Mitch McConnell’s invented 2016 rule about not confirming justices in an election year, or they can oppose Trump, enraging both him and their progressively cultish base while giving up what might be their last chance to secure a conservative majority for a generation."

Notice The Donald's Chamber of Commerce retweet from Sunday morning, signally he's ready for war with Alaska senior Senator Lisa Murkowski, who is not up for reelection in November and is not up for giving Trump a third Supreme Court pick.

For McConnell, this is principle versus power, and the golden rule is “Whoever has the gold makes the rules.” And it’s happening as the next generation of ambitious Republicans looks to a future in which Trumpism remains a dominant force within the party no matter what happens in November.

Don’t expect many Republicans-- even those who want to stick it to Trump-- to be direct with their commitments. “If they try to shove something through, I think you’re going to see some of these Republicans who hate Trump fall on the horrible sword of ‘This country is dangerously divided right now; the hypocrisy is horrible; if we do something like this, it will tear the country apart,’” says Joe Walsh, the former Republican representative from Illinois, who briefly ran a primary campaign against Trump that went nowhere earlier this year. Based on conversations he’s had, Walsh estimates that, of the current Republican senators, “if you put a gun to their head privately, I would say more than 40 of the 53 would like to see him lose.”

Walsh insists that Republicans didn’t want this vacancy-- not now. “This is political death for the Republicans,” he told me.

This is not the time for Republicans to insist that they haven’t “seen the latest tweet.” This is where they either will or will not give Trump the boost that he needs weeks before the election. Now, more than ever, they are either with him or against him. “This,” Senator Amy Klobuchar of Minnesota, a Democrat, said on CNN last night, “is my colleagues’ moment of reckoning.”

...Senator Joni Ernst, in a tight reelection race in Iowa, said in July that she would support a nomination process if an opening occurred. But that puts her at odds with her fellow Iowa senator, Chuck Grassley, who said in August that he couldn’t support a confirmation in an election year if he was going to be consistent with the position he took in 2016. He stood then with McConnell’s adamant refusal to give Merrick Garland a hearing after Antonin Scalia’s sudden death in 2016, though Garland was nominated nine months before Election Day. Of course, the question becomes whether Grassley will hold to his position now that the question is no longer theoretical.

...Late yesterday, I asked a former Republican House member what an anti-Trump Republican senator would do when facing a choice that sounds more out of a novel than anything Goethe might have come up with if he’d ever wandered around Capitol Hill.

“The Republican senator,” said the person, who requested anonymity to speak directly about old colleagues, “will do what they must in the name of self-preservation.”

“Guess what?” the former House member said of Graham. “He’s going to do it. You know he is. He’s up for reelection in South Carolina. He needs his base. He’ll flip on this.”

McConnell, in his Rube Goldberg–machine statement explaining why Trump’s nominee will get a vote on the floor of the Senate but Obama’s didn’t, left the door open to having a vote in a potential lame-duck session after the election.

Maybe it’ll all come down to Senator Mitt Romney, who is publicly offended by pretty much everything Trump stands for but whose spokesperson shot down rumors last night that he would oppose a confirmation before the election. Or maybe, if Mark Kelly wins his Senate race in Arizona, it will all hinge on a legal dispute over whether he would get to immediately be sworn into the seat because his opponent was appointed to it. Or maybe by then we’ll be in a country where the November 3 votes are taking weeks to count, rioters and militias are out on the streets, and, as in 2000, the election will head to the Supreme Court, which now is without a tiebreaker vote.

In 2016, from the minute he learned of Scalia’s death, Obama knew that Republicans would try to prevent him from appointing a justice and flipping the balance to a 5–4 liberal majority. He nominated Garland anyway and threw himself into the fight, daring the GOP senators to oppose a middle-of-the-road, accomplished judge whom so many had voted for in his confirmation to a lower court. Working the phones for a few senators he dreamed might buck McConnell, he pleaded with them: Don’t do this.

I remember speaking with one of the Republican senators struggling with breaking the process then. The senator, though torn, ultimately did not say anything publicly, and didn’t invite Garland in for a meeting.

Last night, Obama closed his statement mourning Ginsburg with, “As votes are already being cast in this election, Republican senators are now called to apply that standard.” Don’t hold a confirmation hearing, he said. Always an institutionalist with his eye toward history, Obama was admitting that the process breakers had won.

Now the question is, what else will Trump, the ultimate process breaker, win?

David Frum offered up 4 reasons to doubt McConnell’s power. He asked himself 4 questions:

• Does McConnell really command a Senate majority?

The polls do not favor Susan Collins, Cory Gardner, or Thom Tillis--senators from Maine, Colorado, and North Carolina up for reelection this cycle. Yet these competitors may not be ready to attend their own funerals. They may regard voting against McConnell's Court grab as a heaven-sent chance to prove their independence from an unpopular president-- and to thereby save their own seats... (Martha McSally of Arizona, however, is likely a safe vote for McConnell. The deadest of the Senate's dead ducks surely must be focused on retaining national Republican support for her post-Senate career. Mitt Romney of Utah is a more open question: His strong sense of fairness will push him against confirmation; his consistent support for conservative judges will pull him in favor.)

• Does McConnell really have a nominee to advance?

Any last-minute Trump nominee will face a gantlet of opposition in the Senate, a firestorm of opposition in the country, and probably a lifetime of suspicion from the majority of the country.

Can McConnell and Trump find an appointee willing to risk all that for the chance-- but not the guarantee-- of a Supreme Court seat? Specifically, can they find a woman willing to do it? The optics of replacing Ginsburg with a man may be too ugly even for the Trump administration. And if they can find a woman, can they find a woman sufficiently moderate-seeming to provide cover to anxious senators? The task may prove harder than immediately assumed.

• Will Trump balk?

Until now, judicial-nomination fights have mobilized Republicans and conservatives more than Democrats and liberals. The fight McConnell proposes may upset that pattern. Trump's hopes for reelection depend on suppressing votes and discouraging participation. The last thing he needs is a highly dramatic battle that could mobilize Democrats in states including Arizona and North Carolina-- even Georgia and Texas.

The smart play for Trump is to postpone the nomination to reduce the risk of Democratic mobilization, and to warn Republicans of the risks should he lose. Trump’s people do not usually execute the smart play. They are often the victims of the hyper-ideological media they consume, which deceive them about what actually is the smart play. This time, though, they may just be desperate enough to break long-standing pattern and try something different.

• Will the conservative legal establishment play ball?

The judicial status quo enormously favors conservatives. Even should Democrats win big in November, it will take many years for them to catch up to the huge Republican lead in judicial appointments. By then, who knows, the GOP may have retaken the Senate, and of course it may well find a way to hold on in 2020.

But a last-minute overreach by McConnell could seem so illegitimate to Democrats as to justify radical countermoves should they win in November: increasing the number of appellate judges and Supreme Court justices; conceivably even opening impeachment hearings against Justice Brett Kavanaugh.

McConnell may want the win badly enough to dismiss those risks. But many conservative-leaning lawyers in the country may be more cautious. And their voices will get a hearing in a contentious nomination fight-- not only by the national media, but by some of the less Trump-y Republican senators. This could be enough to slow down a process that has no time to spare.

Mitch McConnell has gotten his way so often that it’s hard to imagine he might ever lose. But the political balance of power is shifting this fall, and for once, McConnell may be on the wrong side of a power dynamic.

What Ginsberg Left Behind

R.I.P Ruth Bader Ginsberg

by Thomas Neuburger

Ruth Bader Ginsberg passed away on September 18 from consequences of her ongoing cancers. According to an NPR report, she dictated this note shortly before her death: "My most fervent wish is that I will not be replaced until a new president is installed."

Which is one of the problems: She could have fulfilled that wish herself, by resigning earlier. She didn't, and now we're dealing with what she's left behind.

The Failure Before

Ginsberg's mother died of cancer the day before Ginsberg graduated high school. Her husband died of cancer in 2010 (during the Obama administration), a condition he had suffered under since the birth of their daughter many years before.

Ginsberg herself was diagnosed with colon cancer in 1999 and treated. In 2009 she was diagnosed with pancreatic cancer and treated. In 2014 she had a stent placed in her right coronal artery. Future bouts of ill health requiring hospitalization followed in 2018, 2019 and 2020. In 2011 she was she was using her job to help cope with the death of her husband; then that she was waiting for Hillary Clinton to be elected in order to be "the closest thing to a chief justice on a liberal court":

"Why didn’t she step down while Barack Obama had the power to replace her? She was waiting: for a justice, as she said, who would resemble her. And although she didn’t admit it, we knew she was waiting for Hillary Clinton to replace Justice Antony Scalia with a liberal, somebody with a stiffer spine for progressive battles than the one Obama had shown. Had there been five liberals after 2016, she would have been the senior liberal in the majority, and able to assign all the liberal decisions. She would have been the closest thing to the chief justice on a liberal court."

She even, in September 2020, officiated at a wedding without a mask.

If this sounds like ego and ambition, it is. Despite her many virtues (and they are many), this failure of Ginsberg's to rise above herself parallels an equal failure of mainstream Democratic Party leaders and their voters to rise above their "feels" and to work for actual policy.

As Alex Shepherd put it, there has been a "growing obsession with celebrity among Democrats, as if celebrity itself could somehow transcend the grubby business of politics. With figures like Ginsburg and Barack Obama, this thinking went, the party could win the day on the back of its leading lights. Those pleading for Ginsburg to retire were brushed off, or branded as sexists." (I accept this criticism if by "Democrats" he means "mainstream Democratic leaders their partisan voters." Progressives, those decidedly not mainstream, understand quite well the flaws in their celebrity figures and their actions.)

I would blame the media for much of this as well. While right-wing media leads Republican voters much more toward policy, liberal media leads voters toward celebrity and "celebrity moments" that may or may not represent and encapsule good policy.

Obama and Ginsberg are excellent examples of liberal celebrity — an elevation that tends to stigmatize and dampen liberal criticism even when criticism is warranted. The passage of the ACA — Obamacare — is a good example of celebrating the celebrity moment at the expense of critical evaluation — "Hurrah for the win," it's media cheerleaders seem to say, while ignoring its flaws, how it missed the moment, and how it led, at least in part, to Trump.

Or, as The Daily Koko put it on Twitter, "The liberal refusal to view their leaders as tools to accomplish agendas, but rather view them as a projection of their own professional ambitions, has caused incalculable damage to even just the liberal project."

This doesn't just indict Party leaders; it indicts Party voters as well, or that large group that votes out of historic or tribal loyalty, people whose support for the Democratic Party is uncritical and automatic.

The Problem Now

That was the failure before Ms. Ginsberg died, the failure to pass her seat to someone at least "not of the Right" (in the sense that the decidedly centrist Supreme Court nominee Merrick Garland was at least "not of the Right").

Instead Democratic leaders and the voters who count on them to act in the interest of the country are faced with an uphill task: to make sure that a President Joe Biden appoints Ginsberg's replacement, and to make sure the next Senate confirms her.

That will involve, of course, making sure Joe Biden wins the November election, not a certainty. But it also involves preventing Senate Majority Leader Mitch McConnell from gaming the process as he gamed the Garland and Gorsuch nominations, holding the Court seat open for nearly a year and giving Obama's nomination to Trump.

Winning will be no small task. Republicans hold 53 seats in the current Senate, which means the Democratic caucus must, first, vote as a bloc (hello, Joe Manchin; hello, Doug Jones), and second, get four Republicans to vote with them to block any nomination prior to the seating of a new Senate in January.(Murkowski and Collins, though opposed to taking up a vote "before the election," have been silent holding a vote during the post-election lame duck session.)

And finally, if Democrats do hold off a Trump nominee until after the election AND if Biden wins in November, McConnell might still control the next Senate as well. In that case, it will still be a fight to confirm a nominee. Line one in my list of Rules of Political Acquisition is, "When Republicans have power, they use it."

Starting on the Wrong Foot Entirely

This leads to a smaller point that leads to a larger one. Democratic leaders, right out of the gate, are starting on the wrong foot entirely, what Peter Daou called "preemptive surrender."

Let's start with Nancy Pelosi. This CNN headline says it all: "Pelosi says she will not leverage government shutdown to avoid Senate vote on court seat".

"None of us has any interest in shutting down government," she announced, saying "that has such a harmful and shameful impact on so many people in our country." she announced "We have arrows in our quiver that I'm not about to discuss right now."

The key word in the CNN headline is "leverage." Democratic leaders have some — or quite a bit, depending on whom you listen to — but they don't want to use it, or use all of it, or even hold the threat of using it as a bargaining chip. A shutdown may not be much leverage — we'll have to let the experts weigh in on that — but imagine if her answer instead had been, "We'll do whatever it takes."

Meanwhile in the Senate, CNN notes that Democratic senators are "all vowing a furious fight to keep the seat vacant until next year." Yet at the same time, Democratic minority leader Chuck Schumer reportedly told members of his caucus on a conference call that "if Leader McConnell and Senate Republicans move forward with this, then nothing is off the table for next year."

Schumer, in other words, threatens Democratic retaliation next year if Republicans attempt to replace Ginsberg this year. That doesn't sound like much of a threat to stop them this year.

In addition, this threat comes from the same Chuck Schumer who unilaterally let a bunch of Trump's judicial nomination pass in the run-up to Brett Kavanaugh's nomination hearing. According to Sahil Kapur, writing in August 2018, the "Senate just cut a deal to fast-track votes starting at 3:45p today on 11 nominations—including SEVEN Trump nominees to be district court judges," and worse, "Schumer got literally nothing for the deal."

Don't blink while looking for that "furious fight." You may miss it.

The Real Solution

The real solution, of course, is for Democrats to pack the Court — to set the number of justices at 13 or more, leaving the six (or five, if the Democrat's "furious fight" succeeds) conservatives in place and adding enough liberals and progressives so that they can undo the massive damage done by the Federalist Society and their conciliatory Democratic enablers.

The Constitution does not set the number of justices; that's left to Congress, which can do what it wants in that regard. Historically, the number of justices has varied from five to ten. The current total, nine justices, was set during the Grant administration.

But will Democrats pack the Court? Will they dare to use the power they will have, if they gain control of Congress, to end this Supreme Court nightmare? Answer now if you wish, but I'm going to wait to see if that "furious fight" emerges.

The Larger Problem

While regaining control of the Supreme Court is a large problem — face it, this isn't about Party; the ideological right-wing is peopled with monsters who have monstrous dreams and desires — this isn't the largest problem the nation faces.

A much greater problem is the credibility of the Democratic Party itself as currently led. How long will people believe that the Party is willing rescue them, when to all appearances ... it just isn't?

The nation suffers many ills, some of them possibly terminal, all wrought by money and the service rendered to money by the entrenched political class. In "normal" times, this process can go on forever, with politicians serving money while people elect them hoping for something better. A compliant media can do much to keep people hoping.

But in times when lives are degrading, people want real change, not just the promise of change, not just a kind of change that doesn't make things worse.

In times when lives are degrading, people look for improvement. The push for Obamacare in 2009, at a time when many people's lives were coming apart, was based on a hope that this time change would matter, this time Democrats would make health care better in America. But Obamacare was false hope; Democrats created health care system that made things better for some, much worse for others, and still left many without coverage — all to serve wealth and their donors.

The change the people got then wasn't what they wanted. But times soon stabilized, 2009 became 2012 and beyond. Evictions slowed and some people saw a recovery while others, who saw their own lives getting worse, watched Obama nightly through MSNBC's star-gazing eyes and settled back, accepting the status quo. The ship motored on.

The "Covid Normal" — Continuous Degradation

But these are different times than any of those. These are times when many people's lives are degrading in a decline promises not to stop. The coronavirus crisis is still with us with no solution in sight.

Moreover, the economic effects — the massive job losses, the austerity both parties advocate in response, the death of millions of small businesses, and the accelerated consolidation of wealth and power by the mega-rich — these will be with us for the next generation, for many of us, the rest of our lives.

A generation of continuous decline cannot produce a "normal" that people can settle into. People will look for answers, and real change. This one may not be able to be papered over by dutiful MSNBC spokes-anchors.

In short, Democratic leaders are struggling today to prove to an unsettled, pain-ridden public that they offer real solutions, and not cosmetics. Yet they've nominated a candidate who will veto Medicare for All despite its great cross-generational, cross-party popularity, a candidate who's still in the 1990s when it comes to marijuana reform, a candidate who's still pro-police, a candidate who's running on a platform with exactly two planks:

"I talk like some guy from the white working class, and I'm not the monster the other guy is."

No wonder this election, like the last one, is closer than it ought to be.

A Party Litmus Test?

And now comes the Ginsberg vacancy. Democrats, as a group, as currently led and cheered on by their media surrogates, are put to the test once more. Will they put up a "furious fight" or just the show of one? And will the public notice if they don't?

Perhaps both answers will be No. But at some point the Party will fail one of these tests in a way that actually matters, and then only tribal Democrats will vote for them, people for whom the Democratic Party is part of their blood. When that black day occurs, the nation will take a turn it cannot turn back from, and face just three paths only:

• More or less continuous Republican rule by increasingly smaller voting populations
• Rule by a real third party that replaces the Democrats
• The kind of civil chaos and disruption that no one wants to live through

There's only one good choice among those three, and none of them have the Democratic Party's name on it. But whichever path the nation finds itself on, today's Democratic leaders will have led us to it.
 

Many Will Lose From Quick Replacement Of RBG – But Will Trump Win?

 

Me The People by Nancy Ohanian

-by Emorej

What happens if Mitch McConnell now quickly schedules a Senate vote on confirming one more Supreme Court Justice who is extremely pro private property and freedom of contract, at the expense of workers, consumers and presumably of reproductive rights and under-represented group protections?

What is more likely than the following?

• Big donors will bribe enough swing-vote senators to ensure confirmation of the new Justice.
• Under the new court’s super-majority of six Rightwing Justices, big donors will be protected from any inconvenient demands of voters. Dilution of this majority through court “packing” would not happen quickly-- if ever.
• Having secured this protection, big donors will mostly regard Donald Trump as having delivered all his upsides, leaving only downsides in a second term.
• Big donors will find more attractive a Biden-Harris administration’s predictable effort to calm, while less-flamboyantly continuing to disempower, both Right and Left populists.
• The Supreme Court should share these preferences and, despite having only three Democrat-appointed Justices, should find a majority of five (probably including the W-appointed Roberts and Alito) to formalize the election of Biden-Harris.

The above scenario suggests that:

• RBG’s death is a very mixed blessing for Trump.
• If Trump is anything like the deal-maker he claims to be then, before triggering the above sequence, he would prioritize obtaining a promise that Pence, upon Trump’s resignation, would pardon Trump for all federal crimes like Ford did for Nixon. Perhaps a big donor or two could quietly create some type of financial surety to reduce the risk of promises being broken. (All of this could presumably be implemented after the Nov. 3 election, although that would leave only a tight time window in which the sequence would need to be very rapid in order to be completed).