Senate Majority Leader Mitch McConnell broke precedent in a dangerous and destabilizing way when he denied a hearing to President Obama’s nomination of Merrick Garland to the Supreme Court in 2016; Democrats cannot now do an about-face and say they embrace his flawed reasoning without effectively endorsing McConnell's democracy-corroding gambit. That said, McConnell did open the door to the idea that some extreme circumstances might require legitimate opposition to the president’s ability to appoint a Supreme Court justice. As is argued in this editorial by Paul Schiff Berman and elsewhere, a strong case can be made that Donald Trump should not be allowed to appoint a new justice until Robert Mueller’s special counsel investigation is over. The reasoning? That the president is effectively in a position to choose someone who will very likely be weighing in on a case against him personally. As Berman puts it, "It is no exaggeration to say that never before has the selection of a Supreme Court nominee been so thoroughly compromised by the president’s profound personal interest in appointing a judge he can count on to protect him."
Others have argued that, given Donald Trump’s repeated behavior with other officials, there is a decent likelihood that he will attempt to extract some form of loyalty pledge from his nominee — an idea unthinkable before this presidency, but one that is now well within the realm of possibility. Regardless, the stakes for the fate of the United States couldn’t be higher. Obviously, a Supreme Court that, however narrowly, decides that the president can pardon himself of any crimes he might commit would be licensing a tyranny that effectively ends the American constitutional and democratic order. Disturbingly, we saw plenty of examples over the past few weeks of the right-leaning Supreme Court ruling in ways that offer political assistance to the GOP, from supporting the president’s Muslim ban to upholding racially-motivated gerrymandering. The first ruling essentially chose an expansive view of presidential power over the primacy of America’s religious first principles; the second turned a blind eye to the anti-democratic and racist motivations of rigged districts.
The reasons the opposition chooses to highlight for its opposition to Donald Trump’s Supreme Court choice are critical, not because they will heighten the chances of victory — which seems an extremely remote possibility, given the Democrats’ minority position and the failure of any Republican senators to consistently stand up to this president — but because of the way they contribute to constructing a larger critique of Donald Trump that will help persuade Americans to reject his party in 2018 and the president himself in 2020. Democrats and others would do well to oppose the nominee on grounds that go to the heart of why they oppose Donald Trump and the ever-further-right GOP. The idea that the nominee could not be trusted to rule fairly on cases involving the man who appoints him or her is a close cousin to the idea that the Supreme Court should not be a friend to the powerful business interests who give untold amounts of money to the election campaigns of the Senators entrusted to confirm the new justice. And so opposition to this pick will also be a valuable opportunity to argue about what type of Supreme Court justice Democrats would support, as a way of highlighting the stark divide between far-right justices who place the power of business and government power above all else, and justices who understand the straitened circumstances of so many Americans and are sympathetic to righting the massive imbalances of power and wealth in our country, not driving them even further into feudal and profoundly undemocratic territories.
The bitterness and danger of this moment can’t be overstated. The GOP, having stolen a Supreme Court seat in the last year of the Obama presidency, now gets to confirm a second appointment in less than two years, based on a choice made by a president whose legitimacy remains an open question, and whose ultimate loyalties are not to the Constitution, or a democratic America, but to the aggrandizement of numero uno. But the peril of our moment means that careful strategizing and a view to the long game of essentially re-booting democracy in America must always be in the forefront of our thinking. I’ve called repeatedly for a cold ruthlessness in defending our country from the authoritarian tide, and that mindset is appropriate here. There are good arguments being made that if Democrats do manage to delay this nomination until after the mid-terms, it will only serve to rile up conservative voters to turn out and vote in order to assure that Trump’s nominee is eventually confirmed.
An increasingly conservative Supreme Court is a disaster, even a nightmare, for our country, but we also must bear in mind that there are limits to its power. Ultimately, a Supreme Court that rules repeatedly in ways that fly in the face of societal and political consensus risks its legitimacy. Let’s worry more about what we can control — building a majority to take back Congress and take back the presidency. We should have a little faith that we’re on the right side of history and that we can build a movement that will eventually bend even a recalcitrant Supreme Court in the direction of democracy.
