Unsurprisingly, the news of Justice Kennedy's retirement from the Supreme Court unleashed panic attacks among Democrats in Washington, and progressives around the country. No longer, it seems, would there be a proverbial "swing" vote joining the Court's Democratic appointees in throwing liberals and their supporters the occasional judicial bone (especially major ones like the Obergefell decision on marriage equality). Instead, thanks to Donald Trump and the ever-duplicitous Republican Senate Majority Leader, Mitch McCONnell, there will soon be a majority-for-life (however long that may be) of five conservative Justices on the Court, ready to reflexively shoot down any and all major precedents of an even remotely forward-looking, people-protecting nature. Including--and especially--Roe v. Wade.
Or will any of this happen?
Trump holds the power of nomination, and knows that he owes his undeserved place in the White House to the support of evangelical voters who were willing to lose their souls for something less than the world (in this case, control of the highest court in the land). As for McCONnell, he effective holds the power of advice and consent with regard to the constitutional power of confirming Trump's nominees. He has already shown himself to be a complete master of how to abuse that constitutional power, first by inventing a "Biden rule" to deny the Obama-nominated Merrick Garland even a vote for the better part of an entire year, and then usurping the power of Senate Democrats to filibuster Trump's alternative to Garland, Neil Gorsuch. In both instances, McCONnell was able to command the loyalty of every vote in his caucus; in the case of the Gorsuch nomination, he was even able to intimidate several red-state Democrats into "offering" their support.
So, on the surface, nailing down that five-seat reflexively conservative majority on the Court should be a political slam-dunk.
But does it have to be?
I am, at this moment, reminded of that unfortunate statement made by a member of the George W. Bush Administration, in which he famously said that the United States was now an empire that no longer needed to heed anyone's definition of reality--that it was powerful enough to create its own reality. In the context of fighting the Iraq war, that type of assertion seems dangerously deluded at best, and dangerously meglomaniacal at worse. However, as applied to issues of a slightly lesser geopolitical magnitude, I'm not sure that there isn't something all of us can't learn from that assertion.
History, even recent history, is filled with instances of people who successfully defied the odds, not necessarily winning victories in the short run, but helping to build them in the long run. And, sometimes, even moments that weren't designed to be moments of triumph ended up being just that, simply because people acted on their beliefs and not on the calculations of others.
In a way, Barack Obama illustrates both points. The chain of victories for civil rights that was set into motion by the Court's Brown vs. Board of Education decision resulted in Obama's election to the U.S. Senate. His successful presidential campaign was another story; up until the collapse of the financial markets in September of 2008, I thought the the election was John McCain's to lose. That collapse had almost everything to do with Obama's election. But had Obama not entered the Democratic race that year--a race that was supposedly Hillary Clinton's to lose--he would not have been able to turn that collapse into the history-making moment of his election.
Luck, as Brooklyn Dodgers general manager Branch Rickey once said, is the residue of design. And he knew what he was talking about; he knew that the major leagues would have to be integrated one day, but he also know that it would take just the right ballplayer to make it work. He waited until he had that player--Jackie Robinson--who then went on to make it work.
So why should the Democrats--and their supporters, for that matter--simply accept the consensus odds that there is nothing they can do to stop Trump and McCONnell from packing the Supreme Court? Yes, it looks right now like there's a glide path to that accomplishment. But a lot could happen to destroy that path. And it might only happen if Democrats in Washington stop focusing on the odds and start focusing on why they've been sent there by the voters in the first place--to fight for the people against the powerful (to borrow from Al Gore).
As it turns out, Democrats have regrets about not having fought harder for Garland during the pendency of his nomination. Those regrets seem to come less from a belief that such an effort would have been successful (it may very well not have been) and more that there is more to be gained in the long run by not running away from every showdown with their Republican counterparts.
For that matter, is it true that they can do nothing?
Not everyone thinks so. Here is one writer's list of helpful suggestions. Here is yet another suggestion, and my personal favorite. After all, there's no constitutional limit to the size of the Supreme Court. And no "Biden rule" to stop anyone from expanding its membership. True, it didn't work for FDR. But that was in a very different era, one in which the Senate functioned in a more bipartisan way than it does now. We may now very well be in an era in which two wrongs do make a right.
What is essential for Democrats and progressives to understand is that, in the age of Trump, there can and should be no attempt to wait for "a better moment to fight" to come. That moment may very well never show up. And, even if it does, nothing will have been gained by staying on the bench waiting for that moment. If a person has never even learned how to fight by fighting, how will that person even know what that "better moment" really looks like, in order to be able to take advantage of it?
The time to fight is NOW. Not just because of what could be at stake in future Supreme Court decisions, but also because to not even try may be what leads to a political defeat from which we may never recover. We cannot wait for reality to move in our favor; none of the great movements in history happened all by themselves. They happened because people who cared above all about what is right got off their duffs and pushed. Hard.
Are you listening, Chuck Schumer? Are you listing, Senate Democrats? Get off your duffs and push for a better reality. That's what your being paid for. That's what your oaths of office require you to do. For G-d's sake, GO DO IT!
No comments:
Post a Comment