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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Political Strategy Notes – The SCOTUS Fight

From “Don’t want a right-wing Supreme Court? Do everything you can to stop it.” by E. J. Dionne, Jr. at The Washington Post: “And now things stand to get even worse because of Justice Anthony M. Kennedy’s retirement. He was, at least on some occasions, a moderating force. His replacement by another conservative hard-liner in the mold of Justice Neil M. Gorsuch would give right-wing interpretations of the law free rein…On Wednesday, in what might be seen as a companion to the Citizens United decision that enhanced the influence of corporations on our political life, the majority voted to undercut organized labor’s ability to fight back. In Janus v. American Federation of State, County and Municipal Employees , it ended the practice of public employee unions automatically collecting fees from nonunion members on whose behalf they negotiate contracts, tossing aside 41 years of settled law and crippling the broader labor movement…It is equally clear — not only on Trump’s travel ban but also on issues related to voting rights, labor rights and gerrymandering — that the Republican Five on the nation’s highest court have operated as agents of their party’s interests.”

Dionne adds, “You might ask: What’s wrong with all these 5-to-4 partisan decisions? Well, there is the matter of the Republican majority in the United States Senate not even permitting a vote on President Barack Obama’s nomination of Merrick Garland to the court, allowing Trump to fill the seat with a Republican. Every 5-to-4 conservative decision is (in the parlance of judges) the fruit of a poisonous tree of unbridled partisanship…All the recent talk about civility should not stop opponents of a right-wing court from doing everything in their power to keep the judiciary from being packed with ideologues who behave as partisans…There is nothing civil about rushing a nominee to replace Kennedy before the midterm elections. And no rule of civility demands the confirmation of justices who would leave an abusive president unchecked and use raw judicial power to roll back a century’s worth of social progress.”

Aaron Blake’s “The Democrats Are in Dire Straits” at The Fix takes a more pessimistic view for Democrats: “Even worse, while Democrats appeared primed to win back one or both of those chambers this November, that momentum has been arrested. It could be further arrested by the enthusiasm created by a new conservative Supreme Court justice just before Election Day…Democrats are basically powerless to prevent that from happening. They drew closer in the Senate thanks to an unexpected win in the Alabama special election, leaving Republicans with a bare 51-49 majority and just one vote to spare to confirm their nominee. Democrats will fantasize that Sen. John McCain (R-Ariz.), Sen. Jeff Flake (R-Ariz.), Sen. Lisa Murkowski (R-Alaska) or Sen. Susan Collins (R-Maine) will take a stand with them. But that’s likely fanciful; it is much more likely that some of the 10 Democrats seeking reelection in red states will cross party lines in the name of being reelected. With Supreme Court nominees needing just a majority thanks to a series of machinations in recent years, the math is just not there.” But rather than be demoralized by doomsayers, Democrats should make the most of it to energize their base and challenge political moderates of all parties to vote for Democrats in the midterms as a way to restore some needed checks and balance to our government.

“Democratic pollster Geoff Garin said, “The stakes for Democratic voters in this election already were extremely high, and the Supreme Court vacancy supercharges all of that,” note Phillip Rucker and Anne Gearan at Post Politics. “Party officials now hope to use the Supreme Court vacancy as a tool to mobilize progressives, giving them a cause other than their dislike of Trump to volunteer and vote for Democratic candidates…“If there was ever any question whether the November elections would be the most important of our lifetime, Justice Kennedy’s retirement should remove all doubt,” Democratic National Committee Chairman Tom Perez said in a statement…“We need all hands on deck to stop the Court from taking a vicious, anti-worker, anti-women, anti-LGBT, anti-civil rights turn,” [Sen. Chris] Murphy said in a statement.”

Not that Justice Kennedy was a genuine centrist, but he was the closest to the center on the high court. Looking forward, Nan Aron, president of Alliance for Justice explains why “No one on Trump’s short list is fit to replace Kennedy” at The Hill: “So the stakes for this next Supreme Court nomination are enormous. And none of the people on Trump’s “short list” of some two dozen potential nominees, a list that Trump has already acknowledged as a product of the Federalist Society and Heritage Foundation, gives us confidence, No one on the list seems likely to be free of the intense political bias toward the ruling class that judicial nominees of this administration possess in spades.” Aron notes the extremist views of four short-listers and adds, “It should worry us that these judges are at the head of the line for appointment to a court where the future of health care and environmental protection, along with the rights of women, people of color, LGBTQ people, workers and consumers are literally on the line…This Supreme Court nomination will engender the most epic battle over such a nomination that this country has ever seen. Count on it.”

The New York Times editorial, “With Kennedy Gone, Justice Must Be Won at the Ballot Box,” reccomends a heightened midterm effort from progressives: “Mitch McConnell, the Senate majority leader, who put up that blockade despite the damage it inflicted on two branches of government, is celebrating now. He knows he has an open road to confirming whomever he and the Federalist Society want on the bench. Of course, it would take only a couple of Republican senators — say, Bob Corker and Jeff Flake, both of whom are retiring and have been very critical of Mr. Trump, or Susan Collins and Lisa Murkowski, who have supported abortion rights — to force the president to pick someone who at least approximates a moderate…Do not for a moment underestimate the importance of getting out and voting in November. Four years ago, only 36 percent of Americans cast ballots in the midterm elections. Had more people showed up, the Senate may well have remained in Democratic control, Mitch McConnell would not be the majority leader and Judge Merrick Garland would now be Justice Garland. In the days and months ahead, remember this.” If every crisis contains both dangers and opportunity, Democrats may find that they get more GOTV leverage from the Kennedy retirement than does the GOP.

Much progressive energy that will be poured into the midterm elections over the next 4+ months will come from voters who are alarmed by the likelihood of coming SCOTUS assaults on reproductive rights, civil rights, gun safety, the Affordable Care Act, environmental protection and other reforms. But Democrats must also make a stronger case that no future Supreme Court Justices win confirmation if they have a history of opposing worker rights, a consideration that has been barely mentioned in many recent Supreme Court confirmation battles. As Duke Law professor  Jedediah Purdy writes in his NYT op-ed: “When it comes to economic inequality, today’s Supreme Court is not only failing to help, it is also aggressively making itself part of the problem in a time when inequality and insecurity are damaging the country and endangering our democracy…What is at stake is whether American democracy can overcome the new Gilded Age of inequality and insecurity. The justices, meanwhile, are part of the problem: In Janus and other rulings, they have retrenched on the side of private power and budgetary austerity. A different law of economic power will have to wait for a different court, and that will come only through winning elections. Those victories get more uphill every year, thanks in no small part to the current court.”

At The Nation Sean McElwee argues that “Democrats Must Stop Pretending the Supreme Court Is Apolitical: The party has largely avoided talking about the radical nature of the Roberts Court” and urges    stronger messaging: “My think tank, Data for Progress, has been studying messaging on the Supreme Court from elected Democrats, on social media and other channels. We found that Democratic senators tweet less frequently about the Supreme Court than Republicans. “In a political climate where Democrats have been relying on the integrity of the Court to serve as a check against a malicious executive branch and an ineffective legislative branch, Democrats seem to avoid discussion of the courts,” said Data for Progress senior adviser Hanna Haddad, who assembled a data set of every tweet from every senator from January 2017 through June 2018…Jon Green, a co-founder of Data for Progress, studied tens of thousands of newsletters sent by members of Congress since mid-2009, which were compiled by political scientist Lindsey Cormack. “Democrats are less likely to mention the Supreme Court than Republicans. And when they do mention the Court, it is more often to celebrate liberal decisions than it is to alert their subscribers when the Court has sided with conservatives,” Green said. “If this pattern is consistent across other channels of communication between the party and its voters, it could contribute to a misperception of the Court’s ideological alignment among the Democratic base…So there’s room for Democrats to take a more aggressive tone when talking about the Supreme Court and judicial nominations—and it’s badly needed.”

One comment on “Political Strategy Notes – The SCOTUS Fight

  1. Victor on

    Kennedy was a libertarian who used the 1st amendment sometimes to the benefits of liberals but just as often not.

    Like most libertarians, he was not a pragmatic moderate.


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