It’s always easier to mobilize people to change something than to motivate them to work to keep things the same, and that’s why the composition of the federal courts is a major issue for conservatives and pretty much a dud for the Democrats. Motivated initially by school desegregation rulings, then by civil and voting rights, and then by rulings on school prayer and reproductive choice, conservatives have been on a mission for more than a half century to seize control of the Supreme Court and undo what could not be undone legislatively. It remains to be seen how much will be protected simply by the legal precedents established in the long period it took them to win their battle. But they have won their battle now, and the Court is theirs unless something truly extraordinary happens.
Can President Trump be dissuaded from nominating the final justice that signals victory for the conservative movement? If not, can his first nominee be defeated so that he is compelled to find someone more in the Justice Kennedy mold?
Even if the odds of these things are not good, it helps that Trump isn’t really a conservative but more of an adoptive father. There are a lot of things he doesn’t understand, and he probably doesn’t understand this moment and what it means for conservatives. I’m sure that he gets it on some level, but he hasn’t been in the trenches fighting for this for the last 60 years. He may have even made some promises to Kennedy that could influence the kind of pick he makes.
He needs 50 votes for his nominee, and assuming that John McCain isn’t available, that’s exactly how many voters the Republicans have in their caucus. There are several Democrats who are from strong Trump states and who are facing the electorate in November. Three of them voted to confirm Neil Gorsuch, but that was a less consequential appointment.
The goal cannot be to deny Trump any nominee at all. That’s not a sustainable position to take for two and a half years. The goal is to force a consensus nominee.
I’ve seen some arguing that holding up the confirmation would play into the Republicans’ hands and help them win Senate races in November. This is stupid analysis. The Democrats cannot stop any nominee by themselves. They need to be united and then they need one or perhaps two Republican senators to side with them to have any chance at all. The chances of that happening are not good, and they’ll get worse once Trump makes his pick. If a couple of Republicans can be convinced to tell Trump up front that they won’t commit to confirm unless they have a chance at pre-approval, the odds will improve.
That’s why ordinary citizens need to act and to act quickly to let Sens. Susan Collins and Lisa Murkowski know that they expect them to keep their pro-choice commitments. They have the power to sink anyone Trump appoints, but they are presently much more susceptible to Republican pressure than pressure coming from any other source. That’s why I half-jokingly called yesterday for a Million Women March on Collins and Murkowski’s hometowns.
Part of the rationale for thinking the Democrats will inevitably lose this battle and that it would be better to lose quickly is that it is assumed that conservatives still enjoy a disproportionate advantage on the issue of reproductive rights. In other words, opposing a justice who would overturn Griswold and Roe will rile up and mobilize midwestern conservatives who would have otherwise stayed home without mobilizing a corresponding number of voters who want to preserve reproductive freedom and choice. That’s based on history, but this is a new game. This is not theoretical anymore. The SCOTUS will begin gutting 50 years of precedent on women’s rights next year unless something changes. So, now, the people looking for change are in the middle and on the left.
This is a much more even fight.
Needless to say, the Democrats can’t very well ask voters to elect them to fight the Trump agenda if they won’t even wage a fight for one Republican vote over a lifetime Supreme Court vacancy that is as consequential as this one. A failure to fight would demobilize their base and undermine their entire electoral pitch to moderates. But they can’t over-promise. They can’t pull a Merrick Garland on Trump and they should not say that they can. The goal is to replace a Kennedy with a Kennedy, not a Kennedy with a Ginsburg or with no one at all.
Of course, there’s an argument to be made that Trump shouldn’t be nominating anyone unless or until he is cleared by Special Counsel Robert Mueller. And that remains a wildcard here. If Mueller releases a report while this battle is unfolding, it could well change everyone’s assumptions. But you can’t base a strategy on something that might not happen or might happen in a way you didn’t expect.
Regardless of what the Senate Democrats decide to do, they can’t succeed in forcing a consensus judge without a mass mobilization of the people, meaning you. Don’t ask them to wage a fight you won’t wage yourself.