Democrats, calm down. But not too much.
Democrats are furious about the rushed arrangements for the nomination and confirmation of Amy Coney Barrett, and rightfully so. But they need to be careful not to overreact.
Talk about packing the Supreme Court is premature, to say the least. Such talk plays into President Trump’s hands: he has been arguing that a Biden win will unleash the radical left, that it would meant big changes to the government. Biden has succeeded thus far by running as a moderate, one who would merely restore the government to the state it was in before Donald Trump took over. That has been a winning strategy, and Biden should stick with it.
Take a breath, Democrats. It’s bad, but not that bad. The Republicans have done nothing illegal. The Constitution gives the Senate the power of consent over judicial nominees. They had the right to refuse Obama’s nominee, Merrick Garland, and they have the right to approve Trump’s nominee.
The problem is the cowardly and hypocritical way in which the Republican Senate has gone about it. Rather than hold hearings over Garland’s nomination and put it to a vote, and admit that they were refusing a qualified judge because they don’t like his politics, they made up a new rule: Thou shalt not confirm a Supreme Court nominee in an election year.
And now they are breaking their own commandment, even though the Supreme Court vacancy came up mere weeks before the election. Such hypocrisy tarnishes the whole institution of the Senate. Why should we follow the laws they pass when they can’t even follow their own rules?
But this doesn’t mean we need to make radical changes to the government. The system isn’t broken; the problem is that voters have chosen the wrong people to run that system. And voters can correct those mistakes in the coming weeks.
Democrats should focus on winning the election, not just for the presidency, but for the Senate majority as well. Talk of packing the Supreme Court may endanger that goal.
As I have argued previously, the confirmation of a conservative judge before the election can actually be a disincentive for the Republicans. There are a lot of conservatives out there who don’t like Trump, but have gone along with him because of the prospect of his nominating a conservative majority to the Supreme Court. If he’s already done that, why do they need to go on supporting him? But if Democrats threaten to undo the conservative majority by adding justices, that will re-incentivize those voters.
The Supreme Court is powerful, but there is only so much damage a conservative court can do if Democrats hold the presidency and a majority in Congress. The Court can strike down a law if it is unclear or unconstitutional, but they are bound by the law. And this point has been emphasized by conservative theories about the role of the courts: judges are there to interpret the law, not to “legislate from the bench.”
The current case against the Affordable Care Act is based on the fact that Trump and the Republican Senate have abolished the penalty for failure to get insured; if you remove them from the equation, that argument goes away.
Even if the new Supreme Court should overturn Roe v. Wade — not a guaranteed prospect even with a conservative court — that doesn’t mean that abortion automatically becomes illegal. Roe only prevents states from enacting legislation against abortion in the first trimester. In states where the right to abortion is protected, it will continue to be legal, and if conservative state legislatures move to make abortion illegal in their states, it could backfire. Moderate and moderately conservative women who have been voting Republican in state races may change their minds about the party if it moves to take away a right they have held for nearly half a century. Striking down Roe could end up energizing Democrats on the state level.
We owe a debt of gratitude to the Supreme Courts of the last 70 years. In Roe, Brown v. Board of Education, and Obergefell v. Hodges, the court had the courage to go where legislatures wouldn’t. The downside of all this court activity is that legislators have become lazy, allowing the courts to make the big decisions rather than take votes on controversial topics. That, and deference to the executive branch — Senate Majority Leader Mitch McConnell won’t even allow the chamber to debate and vote on anything unless he’s sure Trump will sign it — has meant that the legislative branch, which, according the Constitution, should be the most powerful, has become the weakest.
Legislators are happy avoiding votes on controversial topics rather than taking a vote that will be used against them in the next elections’ negative ads. In other words, fear of losing their job keeps them from actually doing their job. We need legislators who legislate.
