When Ruth Bader Ginsburg passed away last week, anyone who remotely follows politics could have predicted that Mitch McConnell and Republican leadership would break every promise they made four years ago. In 2016, they blockaded President Obama’s Supreme Court nominee Merrick Garland, proclaiming that the next president should get to choose. Now, with a major court opening and less than two months until election day, McConnell and his squad of old white dudes have no issue rushing in a new conservative nominee.
The whole situation is objectively hypocritical. It’s worse, actually — McConnell was willing to let the court cook with only eight members for more than a year to ensure that Obama couldn’t nominate someone. With inauguration day much sooner now than it was when Antonin Scalia died, McConnell is callously reversing course.
In today’s hyper-partisan politics, in which it’s painfully hard to sway people one way or the other, the hypocrisy won’t matter too much. The importance of the issue here — the long-term direction of the country’s highest court—merits even the most cynical political maneuvering.
For that reason, I don’t take huge issue with the Republicans’ hypocrisy. The ends justified the means, even if it doesn’t speak well of the country’s political processes. McConnell and co. were always going to prevent a liberal judge from getting on the court in pursuit of finding a conservative one. Ideally, Congress could come together to accept any legitimately qualified candidate, but that’s not the reality. The court carries major weight. It is fair to take aggressive political action to shape it.
It shouldn’t be praised as canny political strategy. It’s blunt force, with barren disregard for the country’s institutions. Machiavellian isn’t even a good descriptor. This is too public, too overt.
No matter how hypocritical, I can’t find it within myself to criticize the methods. But the ends, a conservative Supreme Court, concern me. Republicans are acting with blatantly harmful intentions. They want to overturn Roe v. Wade. They want to allow discriminatory policies against LGBTQ people. They want to strike down the Affordable Care Act and possibly similar, farther-reaching legislation in the future. Voting rights have already been under attack under Chief Justice John Roberts.
A conservative justice replacing Ginsburg would secure a 6-to-3 conservative majority for potentially decades. That is very bad. Stephen Breyer, one of the three liberals on the court, is already 82. Look out.
If Democratic leadership were in a similar position as the Republicans have been, I doubt they would have taken the same action to shape the court. I wouldn’t have criticized them if they had pulled the same insincere tactics. The Supreme Court is too important. This sort of battling, at times at the expense of the court’s regular function, is not what the founders would have preferred, but it’s the world we live in.
Perhaps that’s a sad state of affairs, but even sadder is that the death of an 87-year-old threatens however much of a fair democracy we have. Democrats have to act with same aggressiveness and urgency as the Republicans. They should do as much as they can to block whomever Trump nominates, and given the Republicans that may vote no, I think they can get it done. From there, they need to take important steps to mitigate the damage the court can inflict, and try to transform it for good.
That means packing the court, FDR-style, at first opportunity. This Salon article makes a good case for such a drastic measure. Adding more members to the court and stuffing it with liberal justices would get around the conservative majority that already exists. In recent days, Democratic leadership has hinted vaguely at a willingness to take major action.
In order to prevent a long-term conservative court, court-packing is a necessary move. We know that this country needs reform in multiple areas in which Republicans refuse to budge. Progressive leadership will continue to make in-roads, and when the time comes for some of their ideas to be put into a practice, an activist court will be crucial. It was crucial for FDR in 1930s, and it was even more crucial during the Earl Warren years of the ’50s and ’60s.
The court shouldn’t be perpetually on the edge of becoming a terrible worry for many Americans. Right now, LGBTQ people worry for their future abilities to live under equal laws. Women worry for their right to choose. Black people and other minorities worry for their ability to vote with ease.
It is sad that the court is tilting toward being a blatant instrument of bad. (It has already been troublesome in the 21st-century in too many cases.) Democrats must exert all of their political will to make the court a positive. That goes for both the Supreme Court and for lower courts, at the federal level and at the state level. It’s time for a Jimmy Carter-style revolution in the courts. If Democrats pick up big wins in November, they should go for similar reform.
Justification for packing the court goes beyond desiring liberal judges. Remember that some of these conservative justices were nominated by Republican presidents who lost the popular vote, and were aided by court-sanctioned voter suppression. Enacting more effective voting and campaign laws — including restricting gerrymandering, outlawing voter ID laws, and pursuing campaign finance reform — would be possible with a liberal court. Republicans who wish to reverse those sorts of changes wouldn’t be able to pack the court themselves if they can’t win elections in the way they always have. Adding states, such as Washington D.C. and Puerto Rico, should also be on the table.
It’s time for the Democrats to get strong and lose a hesitancy to offend. McConnell’s actions, while absurdly hypocritical, show how important the court is. There’s no reason for Democrats not to think similarly.
In the wake of Ginsburg’s death, with a conservative stronghold potentially on the horizon, liberal leaders can’t afford passivity. The millions who will be affected by these decisions can’t afford it, either.