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Democrats Can Win Supreme Court Battle by Making Congress Work




Supreme Court Justice Ruth Badger Ginsburg, like many others we have lost in this humanity-altering year, was a giant. Her accomplishments are numerous and known, and her legacy will be as one of the few Americans who have personally bent the arc of justice. It is giants like her who have overshadowed those who would cause harm to our country, and as we enter what will clearly be one of the most tumultuous seasons of our nation’s history, we need new giants to carry us through it. We also need those already in power, specifically Congress, to honor her legacy by simply doing their jobs again.


In many ways, we started on the path leading us to today on a Saturday evening in February 2016, when Justice Antonin Scalia died. Much like this past Friday, condolences came from every corner of the political and legal worlds, followed quickly by political prognostication about who would replace him and what the process for selecting and confirming that person would look like with a Mitch McConnell-led GOP Senate.


No one in the political sphere could have been prepared for Senator McConnell’s refusal to even consider President Obama’s nominee, Judge Merrick Garland. It was an unprecedented undermining of our system which has led directly to the moment we find ourselves in today.


I worked on the campaign to confirm Judge Garland. Then the chief judge of the D.C. Circuit Court of Appeals, he was not the first choice of progressives, but he was the non-controversial one the Obama Administration hoped would be easier to confirm. His record was impeccable, from supervising the Oklahoma City Bombing prosecution, to an overwhelming confirmation to the circuit court, to personal traits like mentoring youth in Washington, D.C. If there were qualifications for a Supreme Court justice, they would be based on Judge Garland’s bio.


But like many things under McConnell’s Senate rule, we weren’t fighting on the same field. While we made the case for Garland the judge, McConnell changed the entire paradigm by focusing on whether to even have a confirmation process in an election year. McConnell knew Democrats would be powerless to stop him, and he was never seriously threatened by their efforts.


Democrats find themselves in a similar position with the upcoming nomination fight. Realistically, they have little ability to stop President Donald Trump and Senator McConnell from seating a new justice this fall. It seems most likely this debate will happen immediately, instead of waiting until after the election. And if a conservative justice is put in front of Republican senators in the next six weeks, even those saying otherwise now will have a difficult time turning down an opportunity to get the court they have always wanted. Senator Mitt Romney made that position clear in his statement yesterday announcing his support for a vote.


Because of this reality, Democrats should change the paradigm themselves. First, they should do everything in their power to make this a pivotal election issue. Aggressive messaging about the appointment in key Senate races across the country will not only help them flip the Senate and win the White House, it may also impact McConnell’s decision on whether to hold the vote in the first place. It is no longer the case that Democratic voters are not energized by the court, which means an effective campaign would increase the odds of flipping the Senate and beating Trump.


But after they win, Democrats must stay aggressive.


Starting as soon as Congress reconvenes in January, Democrats must govern from a place of strength and conviction. The party has typically operated from a place of fear, preferring to protect the majority and build broad-based coalitions that fracture all too easily. It is time to reset the course of American history through a bias for action on the goals voters gave the party the majority to achieve in the first place.


The first should be to abolish the filibuster, a relic of an era when our country was being built on the foundation of forced labor. Congress should start moving on major policy initiatives, around climate change, economic security, health care, criminal justice, and immigration, while addressing the myriad impacts of the COVID-19 pandemic.


The underlying cause of our fear of partisan courts is that Congress has spent so many years failing to legislate basically anything that the court system has become the de facto legislative branch. Many of the major rulings in recent years have been made explicitly because Congress failed to legislate, and the court itself has been clear that these issues are better suited for the political process. Democrats can fix that system, and rebalance our branches of government, by actually passing laws even the most conservative Supreme Court is powerless to change.


Then, if they so choose, Democrats could begin to address the Trump-packed court system from the bottom up, making it more fair and impartial through nominations and possible changes to the number of judges.


This action-oriented agenda will drive public support, which typically follows decisiveness, not messaging. It will set Democrats up for historic midterm success, because people will finally see a Congress working for them, not bickering with itself.


Democrats have in their grasp the rarest of opportunities to lead a generational shift in our politics, to a rebalanced system that serves the people again. No majority is forever, which is why Democrats must use theirs to rebuild our country in a fairer, more equitable image. That was Justice Ginsburg’s goal and it should guide our work every day.

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