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Omission by Commission
The Democratic strategy on the Supreme Court battle started out badly and has only lost steam since. How did it all go so wrong?
I’m in my mid-thirties, and for my entire adult life I have borne witness to countless sad spectacles like the above tweet: hapless Democratic elected officials — Senate minority leader Chuck Schumer, in this case — half-heartedly appealing to rules and decorum as Republicans ride roughshod over American democracy.
The cavalry isn’t coming, Chuck. You’re it.
With fewer than two weeks remaining before Election Day, the Democratic Party finds itself in a curiously defensive position on an issue that, given recent events, they should overwhelmingly own: the composition of the U.S. Supreme Court.
How did this happen?
Nothing illustrates the asymmetrical realpolitik at play in the American political arena better than the battle royale over filling Ruth Bader Ginsburg’s Supreme Court seat. Within days of Ginsburg’s death on September 18th, multiple polls indicated — by 57% - 38% margins in one poll and 53% - 39% in another — Americans’ clear preference for Trump to leave the seat unfilled before the election. One poll, released three days after Ginsburg’s death, even found voters split (40% - 39%) on the question of whether a future President Biden should expand the number of seats on the Supreme Court if Trump filled Ginsburg’s seat.
Back in February 2016, Republican majority leader Mitch McConnell had waited an hour after the announcement of Justice Antonin Scalia’s death to decisively proclaim that “the American people should have a voice in the selection of their next Supreme Court Justice.” Republicans would hold the seat open for the rest of the year, McConnell explained, preventing then-President Obama from filling it. (Later, weeks before the election, the late Senator John McCain went further, promising to hold the seat open for the entirety of presumed victor Hillary Clinton’s presidential term, regardless of whom she nominated.)
Last month, mere hours (again) after Ginsburg’s death, which occurred on the very day early voting kicked off in the presidential election, McConnell pulled a 180-degree turn, declaring with no hint of irony: “We will keep our promise. President Trump’s nominee will receive a vote on the floor of the United States Senate.”
But the message from Americans in these polls was clear: a principle first invented out of thin air in 2016 nevertheless applied just as much to 2020.
And then something curious happened. Democrats — a party whose adherents had spent years beatifying Ginsburg into a quasi-religious figure and performatively sweating her every doctor’s appointment and workout routine in a macabre spectacle worthy of both relentless mockery and, it must be acknowledged, my full-throated participation — had no plan for the most inevitable of outcomes: her death.
Unlike Mitch McConnell, who threw down the gauntlet mere moments after Scalia’s and Ginsburg’s passings, Chuck Schumer and the Democrats neglected to define a clear principle: if Trump filled the seat, Democrats would expand the Supreme Court. Instead, Democrats did what they nearly always do in times of crisis: muddle through with no clear direction.
Nancy Pelosi hinted darkly about “arrows in our quiver” that could be used to derail Republicans’ plans, and pointed to the possibility of (another) impeachment of the president as a possible stalling tactic. Nothing was ever actually attempted.
A stray progressive senator, Nike Air Revolution-wearing septuagenarian Ed Markey, attempted to draw the line in the sand that the Party leadership wouldn’t:
Which was promptly met by anonymous sniping from…Joe Biden’s campaign team:
Some on Biden’s team have been aggravated by the calls on the left to expand the court, expressing particular annoyance with Sen. Edward J. Markey (D-Mass.) for urging Democrats to abolish the filibuster and add more justices if Senate Republicans move to fill the vacancy.
“People in your own party shouldn’t cause you problems 44 days out,” said one adviser, who like others spoke on the condition of anonymity to be candid.
Biden himself, meanwhile, grew less coherent on the issue over time. He started by proposing that the Senate only vote on Trump’s eventual nominee if he were to win reelection. But liberal outrage skyrocketed after Trump announced his selection of Amy Coney Barrett, a right-wing judge and acolyte of “originalism” (a Scalia-concocted judicial “philosophy” so absent of intellectual rigor that it renders the fabled McConnell Rule a modern-day Code of Hammurabi by contrast).
Around this time, a growing chorus of progressive activists — eyeing the tantalizing prospect of a Democratic trifecta in the White House and both houses of Congress — joined the scattershot calls to expand the Supreme Court, arguing that Republicans’ anti-majoritarian behavior had left Democrats no choice.
But Republicans spied an opportunity. The Democrats, whose position on leaving the seat open mirrored the American public’s, had nevertheless missed a window of opportunity to coalesce around a clear, unifying principle, opting instead for a mealy-mouthed incantation amounting to “Republicans really shouldn’t do this.” (This contrasted sharply with the behavior of Republicans both in 2016 and again this year, who fell in line quickly behind McConnell’s contradictory stances.) So the GOP counterattacked, demanding that Joe Biden publicly declare his views on Supreme Court expansion, which he steadfastly refused to do.
This all culminated in a dispiriting news cycle this month in which Joe Biden and Kamala Harris were harangued with increasing regularity by both reporters and the Trump campaign, demanding to clarify their position on the Court:
Indeed, Mike Pence seized the offensive during the vice presidential debate, repeatedly challenging Kamala Harris directly on whether the Democrats planned to “pack” the Court if they won:
Finally, under enormous pressure, Biden succumbed to the inevitability of his predicament and revealed his grand plan for the Supreme Court:
A commission! Yes, right, good. A commission is always the right way to settle a lightning-rod political debate. (This must be why the Warren Commission was so successful in debunking JFK assassination conspiracy theories, which entirely ceased to exist after the report’s publication in 1964.)
Perhaps we can generously assume Biden’s fondness for prolonged open forums stems from the spectacular success of this tactic during the 2010 negotiations over Obamacare, when Republicans exploited Obama’s good-faith attempt at public dialogue by fear-mongering on a debt crisis that stubbornly refuses to exist and, having eventually found that too dreary, inventing the concept of “death panels.”
Indeed, the fight over Obamacare a decade ago is particularly instructive today. The Democrats proceeded under the assumption that Republicans, while opposing the bill’s broad contours, could nevertheless be brought onside with concessions and compromises. But this was never grounded in reality: Mitch McConnell’s north star was to obstruct the Obama administration at every turn, then spin around and trumpet this lack of progress to voters as proof of the White House’s ineffectiveness. And it worked: Republicans rode the Tea Party wave to take back the House in 2010 and, despite Obama’s reelection two years later, won control of the Senate in 2014, which Republicans have held ever since.
This same strategy is already bearing fruit today. The Democrats’ tepid and disorganized response to the Barrett nomination, in stark contrast to the GOP’s near-unanimity, has not gone unnoticed by the American public. A New York Times poll released this week found that, while voters still believe Biden should fill the empty Supreme Court seat, they nevertheless slightly approve of Barrett’s nomination (44% - 42%) and now strongly oppose Court expansion (58% - 31%).
This outcome was not inevitable. Time after time, polling has shifted abruptly in Democrats’ direction when the party has taken a clear stance on important issues.
It happened back in 2012 when Obama first expressed explicit support of same-sex marriage:
Public opinion continues to shift in favor of same-sex marriage, according to a new Washington Post-ABC News poll, which also finds initial signs that President Obama’s support for the idea may have changed a few minds.
Overall, 53 percent of Americans say gay marriage should be legal, hitting a high mark in support while showing a dramatic turnaround from just six years ago, when just 36 percent thought it should be legal. Thirty-nine percent, a new low, say gay marriage should be illegal…
“By speaking in very personal terms about his own journey, the president has helped to build a larger and stronger majority in support of full equality for committed gay and lesbian couples,” said Fred Sainz, a spokesman for the Human Rights Campaign, a gay rights group that supports Obama’s reelection.
It happened throughout the course of Donald Trump’s presidency as Democrats stopped running away from Obamacare and started defending it as a core foundation of their electoral strategy:
It happened the moment Nancy Pelosi announced the impeachment inquiry in September 2019:
And it’s happening right now in regards to Washington, D.C. statehood, a once-unpopular position — 64% of Americans were opposed as recently as June 2019 — that has seen a spike in support since this summer, after the Democratic House of Representatives passed the first-ever legislation to do it: in June, a YouGov snap poll found registered voters split on the issue (40% - 41%), while a Data for Progress poll from last month found that Americans now supported D.C. statehood by 43% - 34%.
Despite this evidence, all too often Democrats have causality backwards: they conclude that inconclusive or mediocre polling on a progressive proposal is its death knell, rather than an opportunity to form a cohesive messaging strategy to make the case for it.
Joe Biden is making this mistake right now with his ill-fated commission. There is, despite Democratic missteps, a political window for Supreme Court reform: Amy Coney Barrett’s confirmation will be a fait accompli within days, pushing progressive energy to a breaking point. Punting to a half-year-long commission effectively lets all the air out of the balloon and will ensure that, by the time the commission’s “work” has completed, any political willpower to expand the Supreme Court will have evaporated amid fading emotional memories from the confirmation fight and the certainty of six months’ worth of over-the-top caricatures by Republicans.
All of this is happening, in large part, because the Democratic Congressional leadership is a gerontocracy. At 69, Chuck Schumer is one of the youngest senior officials, but he’s joined by 75-year-old Senate whip Dick Durbin, 80-year-old House Speaker Nancy Pelosi, and 81-year-old House majority leader Steny Hoyer as dinosaurs whose political coming-of-age took place during (or before!) the Reagan era. Other key figures are even older: Senate Judiciary Committee chair Dianne Feinstein, who led the disastrous Democratic strategy during Supreme Court nominee Amy Coney Barrett’s confirmation hearings, is 87 years old.
But perhaps no one embodies this sepia-toned Democratic Party leadership better than the 77-year-old presidential nominee himself, Joe Biden. This man, the creature of a now-extinct version of the Senate marked by its parties’ ideological promiscuity, has been incorrectly predicting “I think you’re gonna see the [Republican] fever break” for nearly a decade. Biden has repeatedly insisted, with not a shred of evidence, that the defeat of Donald Trump will lead to an “epiphany” on the Republican side. But his naive belief is belied by reams of evidence to the contrary, perhaps most notably the widespread embrace of QAnon by the GOP rank-and-file and the personal betrayal of onetime Senate colleagues and friends like Lindsey Graham, the very people who form the core of Biden’s political theory of bipartisan comity.
Together these Democratic Party elders, a loose array of ersatz political Expendables, cowed by the decades-old spectre of electoral pummelling at the hands of a then-ascendant religious right, is catatonically unable to appreciate the fact that America has since changed: the Republican Party has careened towards white nationalism and authoritarianism, while Democratic policy positions are not only politically palatable today, but downright popular. To paraphrase Pod Save America’s Dan Pfeiffer, the only people in D.C. who believe Republican talking points are Democrats, who’ve managed to gaslight themselves into thinking that everything they want to achieve is less popular than it actually is. (A 2018 study confirmed this: both Democratic and Republican senior Congressional aides consistently overestimate the American public’s conservatism.)
Here’s the good news: the newly invigorated — and much younger — left wing of the Democratic Party grasps all of this intuitively, in a way the Reagan-quoting cohort of Democratic leadership does not.
I’ve always been baffled by the ways in which Democrats and the media have adopted the messaging narratives of the Republican Party…
There is danger because we are leading from a place of fear instead of leading from a place of courage and strength. Many of the Democrats who are in leadership in Congress, whether it is the House or the Senate — these are Democrats who existed in the era of Ronald Reagan, who have been beaten into submission and into running away from everything that we should be as a party that puts people first. It has been a party that has engaged in some harm because of wanting to appease everyone and not appeasing anyone.
She’s right, and Biden’s six-month commission is the microcosmic distillation of “wanting to appease everyone.” Its likeliest endgame, however, is not the faux unity from the ghost of Senates past, but the steps of 1 First Street, N.E. in Washington, D.C. instead, where every piece of progressive policy legislation for decades will be fast-tracked before a Supreme Court stacked 6-3 with Republican appointees. It doesn’t take an “epiphany” to figure out what happens next.