Now that Anthony Kennedy has proven to be, shall we say, the shy, retiring type, one wonders what the folks who felt that there was no difference between Donald Trump and Hillary Clinton–the folks who stayed home or stood with Jill Stein on November 8, 2016–will say when the Senate confirms a new Supreme Court nominee who makes Antonin Scalia look like Thurgood Marshall in terms of judicial philosophy. “Oops”? “My bad”? Will they not apologize at all, on the grounds that Clinton was too “corporatist” and too “establishment”?
It shocks the conscience that voters who regarded Clinton as unmeritorious of their support apparently failed to consider the importance of the Supreme Court before deciding to either stay home or go with a third-party candidate. What, exactly, were they thinking?
The same can be said for those who now find it fashionable to take potshots at President Clinton, to scorn him as an opponent of progressive principles, to view him as more trouble than he was worth. How many of those folks lionize Justice Ruth Bader Ginsburg as fervently as they loathe Clinton? Do they think Ginsburg appointed herself to the High Court?
Now that Kennedy is leaving the Court, Dan Farber explains what’s at stake:
First of all, Trump’s Supreme Court appointment should drive home a key lesson once and for all: you have to win elections. Really, nothing else is as important. Voters who care about the environment or other liberal causes need to realize, much more than they have in the past, that control of the Supreme Court really matters. It’s been fifty years since Nixon first used his appointments to move the Court to the right. Conservatives have had a laser focus on this goal for many years. And it has paid off, not as fast as they would have liked, but in the end they have gotten what they wanted. Unless liberals are prepared to fight just as hard, they will inevitably lose out. Conservatives are making every effort to keep people from voting and dilute their votes if they do manage to survive the hurdles – all the more reason for liberals to redouble their efforts.
Second, it is obviously important to keep fighting hard in the courts. Many cases never reach the Supreme Court, and environmentally oriented judges may have more of a voice in lower courts. Of course, that assumes that they get appointed, which brings us back to lesson #1 about the importance of elections.
From here on out, progressives and left-leaning independents must go into presidential and midterm elections with the mentality that keeping the White House and Senate out of wingnut hands is of paramount importance in order to preserve the Supreme Court rulings that truly made America great. Does anyone think for a moment that Trump wouldn’t pack the Court with Justices who would threaten not just Roe v. Wade and Obergefell v. Hodges, but also Loving v. Virginia, Katzenbach v. McClung, Abington School District v. Schempp, and perhaps even Brown v. Board of Education itself? Would you put anything past Trump and his minions?
It’s long past time for progressives to become as obsessive about the Supreme Court (and the federal appellate and district courts) as right-wingers are. That means no excuses for sitting out midterm elections—and no excuses for punting in presidential elections, either. (The Ohio fellow who sat out the 2010 midterm election, 2012 presidential election and 2014 midterm election, and whose subsequent disenfranchisement led to the controversial Husted v. A. Philip Randolph Institute ruling, should not have been screwed by the state, but it was deeply wrong of him to sit out those crucial elections.) Control of the Supreme Court is, now more than ever, a life or death issue—the life or death of our democracy, that is.