Ezra Klein says that the confirmation of Amy Coney Barrett to the Supreme Court has “radicalized” Democratic senators to an unprecedented degree. He cites Senator Brian Schatz of Hawai’i, who gave a speech on the senate floor saying that the “old Senate” has been “destroyed by Republicans:
“I really worry about the Senate itself. I was so thrilled to be here… I was being sent to the world’s greatest deliberative body. It’s like a promising high school basketball player being the 12th man on the L.A. Lakers… I thought ‘this is the place where we solve America’s problems.’ And I have seen the inexorable destruction of this institution because of a lack of restraint on the Republican side. And I actually would love it if the blame were equally shared. It would be easier for me. Because I don’t want to sound like that… I imagine these groups of people, and it wasn’t always the moderates, in the middle, nowadays the only people who are cutting deals in the middle are the moderates. But back in the day, it was Teddy Kennedy and Orrin Hatch, it was Danny Noye and Ted Stevens, and now there’s not even a desire to do big things here. There is a total lack of ambition to solve America’s problems here. And there is a total lack of restraint when it comes to the exercise of power.”
Schatz was not the only member of the World’s Greatest Deliberative body to erupt in public pique. Senator Dick Durbin sent the following menacing tweet:
“This is a dark day for the Senate. Republicans have defied rules & traditions in their rush to confirm Judge Barrett in the middle of a once-in-a-century pandemic & an election. I believe my Republican colleagues will regret the consequences of taking us down this path.”
The leader of the Senate’s opposition warned Republicans in a speech that they would rue the day they tangled with Charles E. Schumer:
“You may win this vote… But you will never, ever, get your credibility back. And the next time the American people give Democrats a majority in this chamber, you will have forfeited your right to tell us how to run that majority… You walk a perilous road… I know you think this will eventually blow over. But you’re wrong. The American people will never forget this blatant act of bad faith.”
Klein says that Republican ruthlessness is making Democrats angry, and they might not continue to stand for it. “Under [Mitch] McConnell,” Klein writes, the principle of the Senate has been that “[p]arties should use as much power as they have to achieve the outcomes they desire.” But this may have “reverberations McConnell cannot control and that his party may come to regret” because “in response to his machinations,” Democrats, too, might begin trying to use their power to achieve their desired outcomes.
I will confess that I do not expect much to come of this new “radicalization” and finger-wagging about the Perilous Road that Republicans walk. I believe the Republican response will be to laugh, because Republicans have strategic intelligence and know an empty threat when they see one.
One reason I do not particularly believe Congressional Democrats will start acting like Republicans is that, unlike Republicans, these Democrats do not seem to actually understand what their goals are. The criticisms of Republicans putting Amy Coney Barrett on the Supreme Court are procedural ones: they did it before an election, too quickly, without proper process. They did it hypocritically, after keeping Merrick Garland off the Supreme Court during an election year.
These are not the reasons why putting Amy Coney Barrett on the Supreme Court is bad, though. It’s bad because Republicans are trying to consolidate enough power to eliminate democracy (they are quite open about not believing in democracy and share the Founding Fathers’ belief that the “enlightened” property-owning minority should overrule the will of the masses), and they also intend to use their power to eliminate abortion rights, destroy environmental and workplace safety protections, crush the labor movement, put endless barriers in the way of exercising the right to vote, give the police state the unchecked power to murder people, and let the government treat unauthorized immigrants as non-people undeserving of basic human rights. Amy Coney Barrett’s confirmation should have been just as fiercely opposed if it had occurred after Donald Trump had been reelected, because the consequences for the American people are exactly the same in either case. “The moral legitimacy of the procedure by which Barrett is appointed” is not an issue I get exercised about nearly as much as the fact of putting someone with Barrett’s atrocious record on the Court to begin with.
A few things those Democratic senators have said should sound odd to you. First, there is no real argument for why the Republican party’s agenda is horrible. Durbin says the day is dark because Republicans violated the “rules and traditions” of the Senate. Schatz is criticizing a lack of “restraint” in the exercise of power and pining for the days of Bipartisanship, when manslaughterers like Ted Kennedy and racists like Orrin Hatch would literally slap each other on the back. Schumer says Republicans have committed an act of “bad faith,” as if it would be better for them to do their evil with good faith. He says they have lost “credibility,” implying that Republicans previously had credibility. He even says Republicans have “forfeited their right” to tell Democrats how to run the Senate should they gain control of it, an odd statement that implies Schumer previously believed Republicans had a right to tell the Democrats what to do.
Senate Democrats utterly botched the Barrett confirmation process. I say this not because she ultimately got confirmed, though it’s true that the Democrats did not use the procedural delaying tactics at their disposal. No, the reason we know they botched it is that the American people were more supportive of Barrett at the end of the process than at the beginning! As Mark Joseph Stern of Slate noted, Senate Democrats actually treated the process as legitimate and failed to provide persuasive reasons why Barrett shouldn’t be confirmed. California’s Dianne Feinstein even concluded the Barrett confirmation hearings by giving South Carolina’s Lindsey Graham an affectionate maskless hug. (And who says the days of inter-party physical affection are behind us?)
An important problem is that many top Democrats still do not understand the Republican Party, and so they do not know how to make a persuasive case against it to the American people. The problem is not that Republicans have developed a disregard for procedural niceties. It is that Republicans represent a point of view that the majority of Americans do not accept. They believe Big Business should be able to do as it pleases. They deny climate change, want the rich to pay as little tax as possible, want to criminalize abortion, hate the welfare state, and do not believe immigrants deserve rights. These positions are unpopular—most people want wealth taxes and government-provided healthcare, for instance. In order to achieve their objectives, then, Republicans have to find ways of subverting the popular will.
In doing so, they have ample help from the Constitution, since it was also written by elites who did not believe the majority had a right to rule. Institutions like the Senate, the Electoral College, and the Supreme Court have no real democratic legitimacy. The arguments for the Electoral College, for instance, are absurd—its defenders have the audacity to argue that it forces candidates to campaign all over the country when it actually does the exact opposite. It does, however, allow Republicans to win elections that they would lose if conducted by a reasonable set of rules, so it must be defended at all costs. The Supreme Court, too, is a ridiculous institution—the fate of healthcare reform and abortion rights can literally depend on what happens within a single 87-year-old’s pancreas (bad news for those seeking abortions, the pancreas determined your rights don’t matter.) The Senate, as the New York Times’ David Leonardt noted, gives white people greater representation than people of color, making it a structurally racist institution.
There is no defense for this. When Democrats talk about reforming the Supreme Court or expanding the Senate, Republicans argue that it’s simply a ploy to get Democratic policies through. In fact, what is actually the case is that in an authentic democracy, one where Puerto Rico and Washington, D.C. had senators and the president was elected by popular vote, Republicans simply would not have a serious chance of wielding the kind of power that they have now. We can assume that Republicans are sincere people who believe that their political agenda is good, but in order to accomplish these sincere objectives, they necessarily have to subvert democracy, because their values are not held by a majority.
No wonder, then, we now see Brett Kavanaugh making utterly irrational arguments for throwing out mailed ballots that arrive after Election Day. The Supreme Court released a decision confirming that a federal court could not order ballots postmarked before the election but received after it to be counted. Kavanaugh’s opinion is a good illustration of how naked Republican power-grabbing is thinly disguised as legal reasoning, and policy decisions are treated as if they are mere applications of preexisting law. He invoked (of course) the Constitution, but mostly ignored the important constitutional question, which is: don’t people have an affirmative right to have their vote counted, a right that shouldn’t be able to be abridged through USPS mailing delays? Kavanaugh’s reasoning was thin, and basically came down to “Well, there has to be a deadline”:
Either way, voters need to vote on time. A deadline is not unconstitutional merely because of voters’ “own failure to take timely steps” to ensure their franchise… Voters who, for example, show up to vote at midnight after the polls close on election night do not have a right to demand that the State nonetheless count their votes. Voters who submit their absentee ballots after the State’s deadline similarly do not have a right to demand that the State count their votes…. Those States want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and po-tentially flip the results of an election. And those States also want to be able to definitively announce the results of the election on election night, or as soon as possible there-after… You need deadlines to hold elections—there is just no wishing away or getting around that fundamental point.
In fact, the situation here is not like one where voters show up after the polls close. It is much more like one where voters show up to stand in a long line the day before Election Day, but the line is so long that they haven’t reached the front by the time the polls close. In that situation, the voter is obviously being disenfranchised, because the government is causing them to violate the deadline and is thus taking away a right that the government is supposed to guarantee. Kavanaugh ignores the extremely obvious problem here, which is that if the USPS fails in its delivery responsibilities, a voter who is completely careful and responsible can still end up disenfranchised. This is not an irrational fear—my fellow Current Affairs writer Sam Miller McDonald has been watching the tracking info on his ballot for 23 days and counting, as his vote sits in a sorting center. Under Kavanaugh’s reasoning, if the ballot simply keeps sitting there through election day, it will be rightly thrown out, and Sam will be to blame.
It is vital to understand that the Republican Party is organized to serve the interests of the rich and powerful. The right does not make good-faith efforts to ensure democratic participation, because democratic participation would be the path to its non-existence. I cannot really understand these Democratic senators who have been “radicalized” by the Republicans’ confirmation of Amy Coney Barrett. Why did you expect them to show “restraint”? Why would they ever roll over and let the Democrats win, if they didn’t have to? The unbelievable admission here is that Democrats seem to believe they do have an obligation to show “restraint” and let Republicans tell them how to govern. Barack Obama, in a recently-released excerpt from his upcoming memoir, admitted that he crafted his healthcare reform proposal in a way calculated to appeal to conservatives and get Republican votes (i.e., in a way designed to disappoint progressives), even though it may not have been strictly necessary for the bill’s passage.
So I do not want to hear irate noises from Democratic senators expressing their discontent with Republican procedural violations and appealing to the invisible referee. I want to see them actually doing everything within their power to stop the Republican party agenda. I want to see a commitment to reforming the totally indefensible institution of the Supreme Court, not just a commitment to establishing a bipartisan (!) committee to study the problem. I want to see them making the case, as loudly as possible, that every single day that passes without D.C. and Puerto Rico having senators is a day that racist disenfranchisement continues. I want them to impeach the president over his admission to encouraging political murder. The measure of Democratic success is not whether they publicly harumph about the Good Old Days of the Senate, but whether they succeed in halting the Republican project of seizing power and thwarting democracy.
If you would like to read a comic about how Chuck Schumer would negotiate with hostile alien invaders, you can read one here.