“Injustice anywhere is a threat to justice everywhere…”
–Martin Luther King Jr.
is the editorial/admin staff of Creative Politics, and the pen name used for the original Federalist Papers making the case for the US Constitution in the 1780s. The founders of Creative Politics are a father and son team, both left-handed.
MTCGA. Make the courts great again. It doesn’t roll off the tongue like MAGA does; it sounds more like moving gingerly from stone to stone across a fast-moving stream, as it should. A substantial majority of Americans have lost faith in the Supreme Court over the last 30 years, far more than place their faith in bright red hats, but the response of our political system so far has been one of escalation, not negotiation, and that never ends well, if it ends at all. The Democrats vote down a nominee who believed the Civil Rights Act was unconstitutional, poll taxes were legitimate, and that companies have the right to make sterilization a requirement for employment. When they get the chance, elephantine Republicans refuse to even hold hearings on any Democratic Supreme Court nominee, not even a well-respected moderate who was confirmed to his previous position as chief justice for the second most powerful court in the country by a vote of 76-23, with majority support from both parties. Democrats block a handful of Republicans’ lower court nominations. Republicans block dozens of Democratic nominees. Democrats respond by removing the filibuster for lower court nominations. Republicans respond by eliminating the filibuster for nominees to the highest court in the land, the unelected institution that has final say on the legality of every legislative and executive action.
Escalation is the strategy of threatened minorities, as Republicans are, to make themselves bigger than they actually are, and give themselves more of a footprint than they actually deserve, and is especially hard to resist when the escalation has the lethality to even up the odds: you kill one of mine; I kill ten of yours. In this case, the weapon of choice is lifetime appointments. Today we have five Supreme Court justices–a majority–appointed by minority rulers who lost the vote (we don’t call it the popular vote around here), all among the most conservative justices ever to serve (with a sixth, Clarence Thomas, who is even more so), all destined to serve as close to an actual lifetime as possible, because all were deliberately selected to be young. It’s easy to understand why Democrats are spoiling to pack the courts in response to years of TIT!! for tat. But escalation is escalation, and as representatives of the majority of we, the people, they are the party that has the power to put an end to the political death spiral escalation leads to, and find another way back home. We have some suggestions.
For some, the simple cure for what fails us is term limits. We agree that expiration dates (twelve years sounds long enough to immunize against temporal political considerations) are part of the solution, particularly since they will force justices to consider–and limit themselves–to decisions that can truly stand the test of time. But time is the problem as well. We don’t have twelve years to see whether the ideological brush accumulated over the last sixty years will result in conflagrations that consume not only the legitimacy of the Court but our country as well, nor can we afford to have solutions to urgent, existential challenges like climate change hidden behind flowing black robes for any period at all. After the events of the last fifty-plus years, we have to face the music, more martial than Marshall, and accept that our judicial system has become an unelected, intractably chronically-infected partisan branch of government (some would say the problem dates back even further, but we’re giving the Court of the ’30s a pass as a bunch of grumpy old men who just wanted FDR to get off their lawn).
And this isn’t going to change, because even if it did, at this point nobody would believe it. That ship has sunk.
Fortunately, we have a construct that works pretty well when faced with a situation where we need an organization in place that has to be scrupulously apolitical, yet is charged with monitoring some portion of the beating heart of the political process. Take the FEC, for example, the Federal Election Commission, which makes and enforces the rules for all federal elections. Could there be an organization more likely to be accused, left and right, literally, of partisan intrigue? Except it isn’t, because the FEC has an even number of commissioners, and by law half must be Democrats, half Republicans. It can make no decisions, take no actions, that are partisan; every election rule must have bipartisan support.
Rather than seeing the Republicans’ two palmed justices and raising them three or more, confident in the belief–belied by 200+ years of history–that demographics will always translate into psychographics (that, for example, the economic liberalism Latinos carry in their heads will forever eclipse the social conservatism in their hearts), why not show real political self-discipline (not what passes for it among message-marching political gamesters) and limit the uptick to one, one more justice, for an even ten. Call it the Merrick Garland seat–those who really care, on both sides, will get it, and the news media will be forced to explain it to the rest. For those who need pictures, appoint the mild-mannered man himself to the post.
Then make it a permanent Senate rule, if not the law of the land, that five seats on the Court will always be occupied by liberals, and five by conservatives. One of the beauties of the Constitution is that anything that’s not strictly prohibited is (supposed to be) allowed (so American!). And in the case of the Court, our magna carta doesn’t specify the number of justices, or a whole lot else. There’s sure to be grumbling that this locks the current two-party system in place, but it doesn’t have to–there already exist a number of fairly sophisticated algorithms in the political sciences to measure the relative liberalism or conservatism of judges; they don’t have to be Democrats or Republicans. And with a system like this in place, there would no longer be any incentive for lower court judges and other potential nominees to hide their mental dexterity and acuity, nor their humanity, under their benches–with one set of positive exceptions. Since the nominating and approval process would remain the same, no matter which “side’s” judge needed replacing, at least to some extent every nomination and approval would be bipartisan, because in any given year, the odds are that either the president or the Senate would be in the hands of the party opposite to the ideological slot requiring filling (and when it wasn’t, the “in” party would have to be prepared for the day when it would be–the only reason we still have a legislative filibuster). This could be further guaranteed by reviving the judicial filibuster to insure the minority party has a say, with tight limits on how long any seat can remain vacant to prevent the recurrence of any McConnell-style gamesmanship. The literal net result would be the weeding out of extremists on both sides, increasing the Court’s ability to work together to fashion compromises or, better yet syntheses, in response to the questions put before it.
And compromises or syntheses would be required–or bust. Only when a genuine Constitutional principle that both liberals and conservatives–Americans–agree on is threatened by the actions of another branch of government would the Court be able to take action, which is almost certainly what the founders had in mind when they assured us, in the Federalist Papers, that the unelected judiciary would be “the least dangerous branch,” a ‘break-in-case-of-emergency fail-safe,’ not an entity that undermines the very stability and certainy it’s meant to provide, via gusts of partisanship that push out into states and localities as well. We, the people, on both “sides” would have our faith in the Court’s actions restored, knowing that any decision that seems to be “liberal” or “conservative” had to have the buy-in of at least one judge of the opposite ideology, and likely more than one, since once it became clear that one justice was going to step out and over, the others would have strong incentive to as well, so as to be in position to help shape the opinion. And if this doesn’t happen, if the justices remain deadlocked? Good. That’s the all-clear signal that elected governments at all levels should be left alone to do their jobs, as the founders intended, in a world that is, in fact, changing much faster than can be manufactured out of paper and air by activist jurists.
Predictably, partisans on both sides would gather at the ramparts, otherwise known as the Supreme Court steps, in response. Liberals want to overturn every decision that went against them in the Roberts and Rehnquist courts. Conservatives feel the same about Warren and Burger. And they can do so. They just have to do it the right way this time, through we, the people, not unelected idiologues. The Roberts court, in particular, has made the principle of stare decisis look pretty blank, which is a precedent in and of itself, one that, in the spirit of fair play even Republicans should be forced to acknowledge, ushers in the right to upend its work. If activists don’t like a prior Supreme Court decision, they can pass (or in some cases re-pass) laws that defy it. If the original Court opinion was partisan, our new gang of ten will be unable to strike the new legislation down; the laws will stand, and the older rulings fall. And when we say our solution will allow elected officials to finally do their jobs again, read ‘force’ for ‘do;’ no longer will legislators and other politicians be able to hide behind judicial robes, no longer will they be able to plant political IEDs straight out of law school that detonate in our faces while they pretend to be powerless to stop it.
Conservatives who are really conservatives should love this proposal, but to be fair they have the most to lose from the change, as they’ve gained a tight grip on the sword of justice they imagine the Court to be, one they expect to be able to use to cut down progressive legislation like a scythe for decades to come. Which could result in especially delicious eiferstoren when you tell them, with as much wide-eyed innocence as you can muster, that you’re only trying to be “originalist” and follow “the wisdom of the founders.” That’s right, the original number of Supreme Court justices upon ratification of the Constitution was six, an even number. It was wisdom indeed to foresee the trouble that giving an unelected body, appointed for life, the obligation–and opportunity–to say something about every question that comes before it could produce, which an odd number of Supremes all but guarantees.
The People’s Court
However compelling you find our first proposed reform, it’s only fair to acknowlege that presidential candidates like Pete Buttigieg have come up with fairly breathtaking and compelling court-packing alternatives. In his system, the nine existing justices would choose six more, each of whom would have to be unanimously agreed upon, in all likelihood insuring that the largest voting bloc on the court would always be moderate and relatively non-partisan. We should warn you, however, it’s probably best that you not think of this contraption of platonic forms in practice too much–the mechanics and logistics associated with the various likely scenarios it would need to be able to deal with may make your head feel like it’s just enjoyed a game of 3-D chess. But for us, the main problem with it remains the assumption made by all such proposals that continue the odd number of justices we have today, the presupposition that we want, in effect, an all-powerful House of Lords potentially deciding what’s good for us at every level of government, in matters great and small.
In fact, plans like Buttigieg’s assume we want a stunningly narrow slice of human experience–much narrower than the Lords–to be dispositive when it comes to deciding the law of the land. Consider the Supreme Court of today. Four members of the Court graduated from Harvard Law School. Four graduated from Yale. RBG, ever the wild child, went to Columbia. The two most recent appointees, Neil Gorsuch and Brett Kavanaugh, not only went to the same law school, but the same elite private high school as well. After graduating from law school, every member of the current court clerked for a judge (Gorsuch and Kavanaugh for the same judge, in the same term), practiced law, became a judge, and became a Justice. If they were involved in the political world at all, it was in the bowels of the Department of Justice bureaucracy.
You might think, but of course–how else can we be sure to get the best interpreters of the Constitution than by plucking those who went to the “best schools” and dedicated their entire lives to the law? But it should be obvious, from the wide divergence of opinion about precisely the same Constitutional elements that’s prevalent in so many of the cases coming before the modern Court, that interpretation of the Constitution is more personal opinion than professional practice, let alone a science. And you won’t have to read between too many lines of too many opinions to see how often these learned scholars start with the conclusion they want to reach, then work backwards, pulling in Constitutional elements like insulation to line what they’re building out of air and paper, which is not best practice in any academic field.
To be fair, many of the maddening convolutions of the Constitution seem likely to have been the product of those who wrote it. At the time, 90% of Americans were farmers, but there was only one delegate from a farming family at the table. There were thirty-four lawyers, though, out of 55 delegates total, a sign of the reductio ad absurdum to come. Today, even the so-called “liberal” justices are strongly pro-business, which, in the zero-sum world metastatic capitalism has created, makes them anti-labor, anti-consumer, anti-customer, anti-patient, anti-the common man. In a recent nadir that we hope is not just a saddle point, a newly minted Justice, who shall remain nameless (unless you click this link, or remember where most of our coins are made) had a positively Biblical moment that–well, you’ve heard the story, we’re sure, but it bears repeating and repeating and repeating, to the point of political scarification, ideally set to the music of Anatole France:
A certain truck driver was traveling in sub-zero temperatures when the brakes on his truck froze. He called his company for assistance as cars passed on the other side, but after hours of waiting, none was forthcoming. Finally, as hypothermia began to set in, he unhitched his trailer to seek help, and was fired by the company for doing so. The sage(brush) in question opined that the case was easy to decide. He allowed that federal law gave the trucker the right not to operate his vehicle out of concern for his own safety or that of others. However, in unhitching his trailer to go seek help, rather than remain with it and freeze to death, the unfortunate trucker had “operated his vehicle” and therefore the company was justified in terminating his employment. Here endeth the lesson, and begineth the questions. Can you imagine yourself, or really anyone with any real life experience outside a courtroom thinking–and making a decision–likewise? If yes, can you further imagine making a (self-pitying) prepared joke to a large and friendly audience about what you did?
Let’s be clear, while this judge seems to feel that he had no choice but to make this “easy” call, and apparently believes it’s only lack of appropriate professional education and credentials that prevents his critics from seeing so, in this near-inverse-perverse of the parable of the Good Samaritan, the other two judges on the panel disagreed and found for the workingman, leaving us to wonder at the wise-worn rhetorical question: which of these was the true judge unto him? With an emphasis on wonder, because this “judge,” using the thread count of his degrees and a favorable partisan breeze, has since sailed onto the Court, and they have not. They will not be there the next time a trucker, or a waitress, or a short order cook comes before him.
And lest our liberal friends get into high rue, it bears remembering–and regretting–at least some of what was done in your name on courts past. We offer no opinion here on whether Roe v Wade was properly decided, for example, but we think it bears considering whether its phraseology, holdings, and prescriptions, which have helped cost progressives literally hundreds of elections at the state and national level since, would have been better left in the hands of someone other than Harry Blackmun, author of the majority opinion, who, like all our current justices, had never lived outside the moat of law.
We’re under no illusion that legalizing abortion throughout the land could have been painlessly politically finessed, but words matter–always have and always will–and words, especially those deliberately chosen, are born of experience. Imagine if the Roe opinion had been pulled together and written by someone who had more daily interaction with the large, impassioned minority who felt their country had just given license to murder, someone who might have been a bit less high-handed and dismissive of their morals, who would have wisely given them room to come to agree with Roe on their own terms–as many have–rather than see and remember it only as a lethal ambush by fiat that continues to need to be never-agained into oblivion, along with everyone who supported it.
Think on it. Someone who–while upholding choice–chose different words to be subsequently echoed throughout the body politic, could well, for example, have caused just enough fellow citizens in Florida’s panhandle to vote their economic interests in 2000 and 2016, rather than view their grim trek to the polls as a pure moral crusade, with the words and presumptions of Roe burning like decades of accumulated brush in their ears, along with, frankly, the liberal gloats those words and presumptions empowered. Was the license to “own the rubes” that the sweeping declarations Roe earned us really worth what happened to our country as a result of those elections?
Do we sound a little arrogant, a little high-handed ourselves now? Then let us humble ourselves before those widely regarded as the greatest justices in our nation’s history, and consider how they reached the same lifetime destination as those living in our brave new world of certifications and credentials. Our methodology: each judge on the list below was named on one or more of the top ten most linked-to online lists of the “Top X/Best”:
|Top Justice||Extralegal Experience|
|John Marshall||Fought in the Revolutionary War, VA House of Delegates, US House, Secretary of State|
|John Jay||Founding father, delegate, president of the Continental Congress, Secretary of State, ambassador to Spain|
|William Howard Taft||President of the United States, Vice President, Minister of War (Secretary of Defense), Governor-General of the Phillipines, Governor of Cuba|
|Charles Evans Hughes||Governor of New York, Presidential nominee, Secretary of State|
|Salmon Chase||Governor of Ohio, US Senator, Secretary of the Treasury (under Lincoln)|
|Earl Warren||Governor of California, Attorney General, CA (elected); never a judge|
|Hugo Black||U.S. Senator, Fought in World War I|
|Oliver Wendell Holmes||Fought in the US Civil War, throughout the entire course of the war, seeing substantial action|
|Felix Frankfurter||Actively involved in labor causes, founded the ACLU, political and policy advisor to FDR|
|Louis Brandeis||Known as "the People's Lawyer," dedicated his practice to public causes, never a judge|
|William Brennan||Fought in World War II, US Army|
|John Marshall Harlan||Fought in the Civil War, an elected judge, elected state attorney general|
|Byron White||Fought in World War II, played in the NFL, Heisman Trophy runner-up|
|Abe Fortas||Head of the SEC, worked in Department of Interior, helped set up the United Nations|
|Robert Jackson||The last justice appointed who never earned a law degree|
|Joseph Story||Multiple terms in the MA House of Representatives|
|Stephen Field||California House of Representatives (multiple terms), elected to state supreme court|
|William O Douglass||Chairman of the SEC when appointed, Sierra Club board member as a justice|
|Roger Taney||Maryland House of Representatives, Maryland State Senate|
|Sandra Day O'Connor||Arizona State Senate (multiple terms)|
|Benjamin Cardozo||Elected to state supreme court|
|Thurgood Marshall||Lawyer only, long-time chief counsel for the NAACP|
|Potter Stewart||Fought in World War II, Cincinnati city council|
|Lewis Powell||Fought in World War II, long-time member of Richmond, VA school board|
|John Paul Stevens||Fought in World War II|
We ordered these worthies roughly in order of distance from the credentials of justices today, but even those at the bottom of the list, who were state judges and attorney generals only before they ascended, were elected, not appointed, to those positions, and anyone who has been part of an election campaign or run for office themselves can tell you one thing elections achieve is give those who win, especially, a wollop of humanity upside the head during the campaign and a kick up the podium to claim victory; they make you part of a team, and as Justice White could tell you, no one is bigger than the team, not even the candidate. Once ‘safely’ in office, any office, there’s no splendid isolation, not if you plan on staying, and no ritualized combat like the courtroom to take you to the next level; it’s asymmetrical warfare all day long, every day. There’s a reason many politicians dream of being appointed to the Court “when they retire.”
We assume there’s no need to explain how active duty during wartime gives you a completely different perspective on your fellow man than the perpetual law school the path to the Court has become. Even playing in the NFL does a better job of exposing you to the real life of America. If we’re going to have an unelected, lifetime-appointed body making so many critical decisions about the life and land we live in, shouldn’t at least some of those making these decisions share a bit more of the same life experience with the rest of us than is the case today?
That becomes a relatively seamless possibility if we split the court 50/50 by law between liberals and conservatives. As long as certain seats are reserved for justices of specific judicial persuasions, it becomes a simple next step to require that x members on each side have to come from the general public, not have law degrees, and have no prior experience as judges. Or at least have substantial life experience outside the law, by which we mean adult experience–a hardscrapple upbringing, no matter how challenging, is not life experience as we’re understanding and using it here; that’s why childhood and adulthood are called what they are. These old school/new school nominees still probably couldn’t be completely representative of the “man on the street,” in that they’d likely need to have strong personalities and the confidence that comes with leadership, lest those with superior command of legal jargon, for example, use this to beat them into submission. But it would at least be a “man on the moon” first step towards addressing a much larger problem.
Type “things that are not in the Constitution” into your search engine, in quotes. If your search engine was Google at 4:02 PM ET on Bastille Day, 2019, you got more than 72,000 matches. And most of the time, that’s a number to be grateful for. When one speaks of “the wisdom of the founders,” the first thing that should be mentioned is that they knew their limitations; they were humble, or at least they forced humility on each other. One of those “things” not found is judicial review, the ability for courts to strike down laws that are unconstitutional, which was only established in 1804, fifteen years after the document was signed, in Marbury v Madison, in which, appropriately enough, given our current situation, a chief justice from the minority party that had just been thrown out of power used a bit of “I come not to praise Caesar” legerdemain to give the ruling party what it wanted in a nasty, hot little political squabble, by merely asserting vast powers over all laws in perpetuity.
It’s an exaggeration that Chief Justice Marshall conjured up judicial review out of thin air, though it’s interesting that the same people who like to remind us, with an implied smirk, whenever we express outrage at the hottest new voter suppression techniques, that the Constitution nowhere says anything about the people’s right to vote, are so quick to leap to defend the right of the Roberts Court to overturn law after law on Constitutional grounds (especially when they’re wrong from the premise–the right to vote is guaranteed, four times as often as the right to bear arms, for example).
One thing that is clear from any objective reading on the document, however, is that the founders never envisioned the legislature, executive, and judiciary as co-equal branches of government, which is transparent not only from their respective duties and powers over each other (the executive is just supposed to faithfully execute the laws Congress passes, for example–LOL) but the amount of time, attention, and language devoted to each in the document, where the judiciary appears as a vague afterthought. This is certainly how it was treated and behaved in the first fifteen years of its existence, and even so for decades after Marbury–it would be fifty years, in fact, before the Court overturned another federal law.
The founders didn’t, couldn’t have anticipated the Industrial Revolution, and the resulting mass migration to cities, where more than half of Americans now reside; they didn’t anticipate an America where the number of people living in one county would be greater than 42 of our 50 states. And they knew this; in leaving the document so open, so much like a template to build on, they expected and left it up to us to fill in the blanks and adapt to changing times. As de minumus as their judicial specifications were, it’s likely, if not certain, therefore, that not a lot of time, attention, or purpose was attached to the way in which federal judges were confirmed, and no fair reading of their contemporaneous writings can lead one to any conclusion but that they would be appalled by our ‘failure to thrive’ when it comes to the maturity of this procedure today.
As it stands, thanks to the way our population has grown, and shifted over time, what has spun up out of the Constitutional dust, stinging all who try to enter it, is a hermetically-sealed cycle, a granuloma that guarantees not just minority rights, but minority rule. Judges are nominated by a president who is chosen by an Electoral College in which small, rural, white states have disproportionate sway–especially, ironically, when the nation is most closely divided and in greatest need of balance. These judges are then confirmed by a Senate in which these same small, rural, white states have clout that far exceeds their democratic bona fides. And then these judges, increasingly, use their powers not just to interpret law, but to become the ultimate lawmakers in the system.
What’s missing? Merely the branch of government that was most important to the founders, the one they dedicated the most bandwidth to defining and enumerating the powers of, the only branch that can remotely claim to be the popularly elected representative democracy they envisioned and were willing to die for: the House of Representatives. So much did they invest in it that the Senate was only created as a check on its awesome powers, to allow passions to cool, and insure that the small, rural, white states had some say. And yet in our current system, the House, the voice of the majority, ultimately has no say at all. “Things not in the Constitution.” Things that would make the Founders say hmm.
This must change. In light of the powers the judiciary has gained over the course of our history, and the ever-increasing length of lifetime appointments and therefore their powers, the House, not just the Senate, needs to have yay or nay say, not just for Supreme Court nominations, but for all nominations of all federal judges. Because while we and the media focus nearly all of our attention on the Court, less than 2% of the matters that enter the judicial system ever reach the Supremes–the rest are decided by other levels of the federal judiciary. And nothing has made it clearer than the last two years how important all branches of the judiciary are in insuring that other branches don’t misinterpet the “mandate” they’ve been given to take actions that, in the velocirapt global environment we live in, have consequences that can’t easily be undone the next time we have the opportunity to vote for or against their occupants. A president who lost the vote does not have a “mandate” to govern from the extreme right as if his base were all-important and the majority of the country does not even exist. For example.
We now reach the point in the essay for wistful sighing, and “wouldn’t that be nice,” for “centrist” Democrats to intone about how the Constitution gives the power of confirmation to the Senate and the Senate only, and short of a bloody revolution, we just have to live with that, because “those are the rules.” Which means it’s time for us to ask all sighers and intoners to look up the Senate filibuster in our most sacred secular document. We’ll help–you’ll find it right next to the paragraph about judicial review. In point of fact, and pointedly, the Constitution gives both the Senate and the House the full authority to determine the rules by which business is conducted in their chambers, which is the basis upon which the filibuster, never referenced in the Constitution, arose.
Until recently, the filibuster was also a key way that insured both parties, representing the full range of the political spectrum, had at least some warped opportunity to weigh in on new judges. And it wasn’t the only one. Sometimes formally, sometimes informally, whenever a judge was nominated to begin his/her long journey (or elevator ride) to the Court, both the senators serving the state where their service was to commence, regardless of party, had the ability to block even a hearing on the nomination by returning a negative “blue slip” on the nominee, or even by just not returning one at all. Informally, but often strongly, the non-partisan American Bar Association also had a say–nominees who didn’t receive a “well-qualified” or “qualified” rating from the ABA were rarely, if ever confirmed; usually their nominations were scuttled without a hearing.
Even now, even as he’s tearing down the house, Mitch McConnell still won’t simply fill every vacancy tomorrow (as he theoretically could now that both the filibuster and blue slips have been swept away); he still feels he has to cut deals with the Democrats to get the judges he wants through expeditiously. In fact, the number of vacancies to fill has actually increased since McConnell began his push to pack the court with right-wing partisans. Why? Because even Mitch McConnell understands the dangers of completely steamrolling the opposition to put as many unelected bureaucrats as possible in charge of the country on a lifetime basis–nobody projects more than McConnell about payback. Even the gentleman from Kentucky has a dim awareness of the awesome responsibility our Founders entrusted us with when they left our founding document so open-ended, and he probably knows a thing or two about unintended consequences as well.
But that’s no reason to be sanguine–in spite of all of the above, Republicans have succeeded in putting 43 new, young, far-right judges who do not represent our country on the nation’s circuit courts–one level below the Supremes–in Trump’s first two+ years in office. At a comparative point in his presidency, thanks to McConnell’s machinations, Obama had only gotten 19 of his circuit nominees through the confirmation process. To be fair, both sides cry foul where the confirmation process of lower court judges is concerned, and To Be Fair, we should add up all the cases where Republicans tried to fill a seat and Dems denied a hearing, voted down the nominee, or ran out the clock, add up all the cases where Republicans did the same to the Dems, and let the party that was cheated more add the number of judges they were cheated out of to the circuits or districts where they would have served. But leaving the steroid era from 2017-2021 out of the calculations, of course, since there is “sweeping and systematic” evidence (starting, but not ending, here) that Trump was never legitimately elected and therefore shouldn’t have been able to nominate any judges at all. It’s a step that may have to wait until Democrats control both the presidency and the Senate, since they appear to be the only party fair-minded enough to just wipe the slate, but the House does not need to wait to get its share, not when the one power out of the long list bequeathed to them in the Constitution they still hold is the most powerful of all: the purse.
Republicans are a backward-looking people; precedent is a deadly weapon for them, like kryptonite or garlic. This is one of the reasons the party formerly known as the GOP is seeking to pack the courts with activist judges who can wipe it out for them, where it’s convenient to do so. And in this case, ironically, precedent favors the bold, as the unprecedented partisan meanspiritness of the last two years is ripe for the occasion. The Republicans deliberately designed their tax bill to selectively force blue state taxpayers to pay billionaires’ taxes for them, they sought to take disaster relief from blue California and Puerto Rico to pay for the vanity wall (and the party of prosecutors surely knows that trying and failing does not result in absolution), they’re now mulling the possibility of cherry-picking national parks in blue states to fork over for Trump’s recent multimillion dollar celebration of himself, to mention just a few relevant, particularly gratuitous, and spiteful instances that come quickly to mind.
So if House Democrats were to engage in a bit of surgical fiscal flaying on line items that disproportionately favor red states until the Senate has an epiphany about the parable of the loaves and fishes, it’s not like the Grandees can claim even the tiniest smidge of the precious moral high ground that’s always carried a special weight in our country (from Lexington to Gettysburg to San Jacinto). Especially not when they’re on record in favor of torture, and when there’s so much fiscal flesh available for flaying, thanks to its “conservative” supporters much greater dependence on federal largesse than the counties where GDP is colored blue.
Repos can and will bleat that this is a power grab, of course, and the House can happily agree. Yes, it’s a power grab, of course it is; it’s a power grab taking power back for the people, for the majority of all Americans. Even “taking back” is strong language–the president would still nominate, the Senate would still advise and consent, nothing is being taken away from either body, except the ability to impose swarms we never cast a ballot for at the top of the legislative food chain without our consent. In other words, if it’s “taking back,” it’s like “taking back” the night, taking something that by natural right was supposed to be ours in the first place, and always. This is a fight Democrats should want to have, especially if Mitch McConnell is the face of the opposition.
We can and should press Democrats in the House to pick up the gauntlet we’ve just laid down, and we’ve created a broader checklist of To Dos for Democracy that includes this and a number of other simple steps we think all should be taking, many of which we’ll be discussing in coming weeks, when you’ll see us putting our phones and faxes where our pixels are, and hopefully be encouraged by the growing strength in numbers. We can and should also be calling our Senators every day to ask them what they’ve done today to stop a clear minority of Americans from choosing all the authorities in what would clearly be, even if Trump were not occupying the White House, the most dangerous branch. In fact, make that minority “sub-“: in the last full (six-year) cycle of Senate elections, Democratic candidates have received nearly 25 million more votes than their Republican opponents, including 17.5+ million more in the most recent go-round, a difference that can’t be bridged by even the best sophistry available). Nor by the sophistry that our Senators can’t outthink Mitch McConnell–if they can’t, they should be put on notice, or quietly leave of their own accord.
But it will take time, they’ll tell us, to “socialize” these actions, as usual–too many of our federal officeholders are hippocrats. It’s been the Democratic states, not our national representatives, that have been willing to take bold action and stands to hold the line against oligarchy, elitism, and tyranny. Since he became Chief Justice, John Roberts has demonstrated, admirably and repeatedly, a Marshallian concern for the legitimacy of the Court–and rightfully so–which is reflected in his steady drift to the center and, especially, in decisions like the recent citizenship case, in which his majority opinion echoed Marbury in the jiu jitsu deployed to navigate the clash of civilizations that’s really at its core.
We can choose to be grateful for these scraps, or we can choose to be grown-ups, at least where politics is concerned, and drive a stake through the weakness exposed by this gentility. Privately, and then publicly, if necessary, Democratic governors and attorneys general should collectively draw up a list of all the activist, nakedly partisan, and often blatantly hypocritical (e.g. Janus v. AFSME, Arizona Free Enterprise v. Bennett) decisions that have been made by the Court since at least Bush v Gore, and inform Roberts that the next such decision (a regularly updated list of prospects could be supplied as well) will result in open state-level defiance of all of them.
So Janus prohibits unions from collecting dues from those who benefit from its actions? Democratic states should let Roberts know that if his court continues its extended visit to the china shop, they’ll pass laws that any state or local employee represented by a union who refuses to pay dues will be fired, as a matter of policy, and dare the Court to do something about it. Roberts will find himself staring into the same abyss Marshall did more than two hundred years ago, because blue states like California and New York are not Arkansas, Mississippi, and Alabama in the 1950s–or the 1860s–they’re some of the largest economies in the world–and overcoming them vis a vis any of the rights and responsibilites at stake will require a lot more than forcing one’s way through a single school door. Roberts, we’re sure, understands enough about business to know that even if the Court were able to put such a rebellion against its authority down, it would be the mother of all Pyrrhic victories, and unlike the current occupant of the Oval, he’s not in thrall to our enemies.
So this step, too we, the people, should be encouraging, albeit with slumped shoulders, while hoping and praying it never comes to that. Because what’s really needed is a balanced approach to checks, lest we reap the whirlwind of perpetual one-upsmanship. In 2021, or 2023, the Democrats will have a once in a generation opportunity to achieve this, heal our nation, and move forward together, akin to the opportunity Republicans had after 9/11 to move a nation more unified than any time since World War II to do big, great things. The Republicans squandered this opportunity by choosing to leverage that tragedy for nakedly partisan political gain instead.
In the one circumstance where escalation would be a good thing, Democrats must show they can do better.
Part of our Art Of The Deal series…
Creative Politics synthesizes the best of liberal and conservative ideals with technology and history to generate policies, strategies, applications, and actions for the post-modern era that are well outside the beltway, and well beyond just talk. All Creative Politics blog posts are collaborative, living documents, the way Madison and Hamilton would create them if they were writing The Federalist today. We welcome, nay urge, your feedback in the comment/discussion section below, and will be using it (with credit) to make what you just read more and more real–thanks much for your time and insights; they will go unpunished!