The death of Justice Ruth Bader Ginsburg has come as a shock to many millions of Americans, and particularly to millions of Democrats. In one saddening blow, Democrats saw President Trump suddenly able to cement into place an overwhelming conservative majority on the Supreme Court, and potentially revive his downhill re-election bid based on the political fight over RBG’s successor.
An early consensus seems to be emerging among Democrats that the party should embrace adding justices to the court if Trump and Senate Republicans move forward with a replacement, both as a way of rectifying the “stolen” seat of Merrick Garland and compensating for a late-term appointment of another judge. As Josh Marshall summarizes the situation at Talking Points Memo, the Democrats can’t simply insist that Majority Leader Mitch McConnell follow his notorious rule from 2016 that no justices should be approved during a presidential election year; they need to have a clear action plan for what they’ll do if the appointment proceeds.
The RBG fight has absolutely backed Democrats into a corner, both in terms of the party’s ability to defend the interests of its voters and to protect the larger legitimacy of American democracy. McConnell’s willingness to make up a set of rules that harms Democrats 100% of the time shows that he simply does not believe that the Democrats will ever turn the tables on him. McConnell’s certainty is rooted in confidence that the Senate, because of the disproportionate power it gives to GOP-leaning rural voters and GOP voter suppression efforts, is far more likely to be controlled by the Republicans than Democrats into the foreseeable future. Still, the threat that Democrats would move to expand the Court during the times they do hold the Senate — such as after the upcoming November elections — seems like a straightforward way to right the imbalance, if not deter McConnell from moving ahead with this current appointment.
The challenge for Democrats is that they must make the case for expanding the Supreme Court without appearing to be the mirror image of the GOP: power-hungry and unwilling to accept the will of the voters. Supporters of adding seats point not only to the “stolen” Garland seat and the current potential appointment in defiance of the Senate leadership’s own previously stated rules on such appointments, but to the larger undemocratic nature of the Senate. For instance, though the GOP has a 53-47 edge currently, Democratic senators received a staggering 12 million more votes more than did Republicans in the 2018 election. And as Nate Silver discusses, the rural skew of the Senate basically makes it much more likely that a GOP Senate will be in charge when it comes time to approve Supreme Court justices nominated by a president.
This argument is in fact central to any effort to expand the court — to make sure it represents the American people more completely — and is more persuasive than contending that the court should be expanded simply because the Republicans have appointed more judges.
But of course it is the specific decisions by a current and future GOP-leaning Supreme Court majority that is the real matter of concern. The Democrats would need to argue that the conservative majority represents views and politics far out of the American mainstream and at odds with the interests of ordinary Americans — a fact borne out by rulings on issues ranging from gutting the Voting Rights Act to eliminating any sort of limits on campaign contributions by corporations and billionaires. For Democrats, a future in which the Supreme Court, tilted to a 6-3 conservative majority by three Trump appointees, would strike down any progressive legislation passed by a Democratic president and Congress would very much be like the hand of Trump reaching out from beyond the political grave.
To build public support for a plan to expand the court, Democrats would need to make intertwined “idealistic” and “pragmatic” arguments. The idealistic one would involve the issues of democratic legitimacy around the fact that too many justices have been appointed by presidents who lost the popular vote and were approved by a GOP Senate that reflects a minority of American voters. The pragmatic argument would involve pointing to the plethora of court decisions to date that kneecap worker rights, health care rights, and democracy. Arguments for democracy are most powerful when they’re tied to the practical effects of what greater democracy means for most Americans.
I think Democrats will also increasingly recognize that expanding the Supreme Court will need to be part of a larger pro-democracy plan, that includes things like making Washington, D.C. and Puerto Rico into states, banning partisan gerrymandering, creating automatic voter registration nationwide, and making election days into holidays. This would foil arguments that the Democrats are making a partisan power grab, and strengthen their case that the primary interest is in expanding Americans’ power to rule themselves, with the clearly stated belief that more democracy means that more people will choose Democrats. Matt Yglesias has made some common-sense suggestions for how the Democrats could maximize their public support by alternating a push for democratically-minded structural reforms with concrete health care, jobs, and tax policies that help the majority of Americans, thus providing what amounts to a real-world demonstration of the benefits of such democratic reforms while defusing criticisms that they were done for purely partisan ends.
Beyond expanding the size of the court, the Democrats would also need to look at passing laws limiting the terms of justices so that the fate of our political system no longer seems to depend on the longevity of particular justices and provide clear visibility into when a president would be able to pick a replacement. This would also be a key element of heading off a likely cycle in which Republicans and Democrats continued to expand the court indefinitely in order to gain an upper hand.
But while we desperately need a broad campaign to revive American democracy and defeat Republican authoritarianism, such a campaign comes up against the reality of our political moment: the overriding urgency of defeating Donald Trump in November. In organizing a strategy to oppose Trump’s Supreme Court nominee, the effects on the prospects of Joe Biden and the Democrats in November need to be the primary concern. There seems to have been a lot of knee-jerk thinking that RBG’s passing would end up being a net benefit for the president, but this depends entirely on how the Democrats choose to proceed. Whether or not Democrats have any chance of stopping this appointment — and I think the odds are slim — they have a strong need to oppose it tooth and nail as a logical conclusion to their argument that Donald Trump is not fit for office: as he is not fit for office, he has no place appointing yet another Supreme Court justice. If the Senate ends up approving Trump’s choice, this will strengthen the Democrats’ case that the president has too much power and has been enabled by Senate Republicans all along.
The president and the GOP’s rush to appoint a new justice supports Democratic arguments for opposing this nomination. We are shockingly close to November 3, and any review of a new nominee will necessarily be rushed both in terms of time and attention from a public and politicians distracted by the upcoming election. The apparent need for GOP speed also bolsters the Democratic case that a Supreme Court justice appointed by a president who appears headed to electoral defeat will harm the court’s legitimacy and the interests of the majority. After all, if Trump and his Senate allies really thought he was going to win in November, then why the rush? Why not just use the pending nomination to energize Trump voters? An air of desperation infuses this unseemly sprint to get another justice on the court.
At the same time, the Democrats can’t let this Supreme Court fight distract from keeping the campaign focus on Donald Trump’s disastrous handling of the coronavirus epidemic and his increasingly authoritarian rule. His incompetence and unforgivable inability to think only of what might benefit him politically has led to the deaths of more than 200,000 Americans; there are projections that this already-incomprehensible number could double by the end of the year. And as defeat has loomed larger, the president has doubled down on undermining the vote and promoting a violent, authoritarian vision for maintaining power. Donald Trump’s crimes against American health, prosperity, and democracy can barely be gauged, but our very survival as a country depends on his removal from office in November. The Democrats should not shy from making clear to McConnell and other Republican officials their intention to undo the corrupt appointments of Gorsuch and the new nominee, but it would not be a great plan to allow the president to run not on his coronavirus record but on his opposition to a “Democratic court-packing coup.” I am not sure where this balance lies, but Democrats will need to find it.