Editorial Law and Policy

With Kennedy Retiring, Senate Democrats Need to Fight for Our Lives. Do They Have the Guts?

Jodi Jacobson

Kennedy is retiring and a SCOTUS fight is upon us. This is not politics as usual. This is survival. The Democrats must treat it as such or be forever infamous for preemptive surrender.

At the end of a week in which the illegitimate U.S. Supreme Court pick of an illegitimate president now under federal investigation provided the critical fifth vote on cases eviscerating labor rights, the rights of Muslims, and the rights of pregnant people to medically accurate information, Justice Anthony Kennedy announced his retirement. As a result, Donald Trump (or more accurately Vice President Mike Pence and the Federalist Society) will make the most consequential Court pick for at least a generation. Republican Senate Majority Leader Mitch McConnell (KY) has, not surprisingly, already vowed to confirm Trump’s nominee by the fall, without even knowing who that will be.
Kennedy’s retirement and the prospect of his replacement precipitates a crisis of power, of constitutional duty and legitimacy, and of the very survival of our democracy. It also raises a question of profound import to the basic human rights of the vast majority of the U.S. population now and in the future: Are Senate Democrats up for this fight?
Trump lost the popular vote. He was elected with the assistance of foreign powers. He is both anti-democratic and a fascist. He consorts with and praises fascists and dictators. His administration is filled with crooks, incompetents, racists, white supremacists, and domestic abusers. Several people formerly associated with his campaign are under indictment or investigation or cooperating with investigators on what may well be the worst and most profound case of presidential corruption in this nation’s history. He is supported by a party that is stripping citizens of their voting rights, economic rights, reproductive rights, and rights to due process, has abdicated all responsibility for holding this president accountable, and is clearly concerned only with consolidating power by any means necessary. And in keeping with the anti-democratic nature of today’s GOP, his first Court nominee, Neil Gorsuch, was seated as a result of theft when McConnell refused to even give a hearing to former president Barack Obama’s nominee, Merrick Garland. Indeed, Republican senators refused to even meet with Garland. Given that he accepted the seat, I personally consider Gorsuch an accomplice to that theft.
Senate Democrats now face a reckoning: They will either step up and fight like our lives depend on it (and they do), or they will invite fascism in for tea by “being civil,” “playing by the rules,” and ordering Chinese takeout. Even worse, they could decide they are powerless to fight. That is not acceptable. The fundamental rights of the vast majority of the people in this country and, indeed, our democracy itself, is now clearly at stake. As the Deferred Action for Childhood Arrivals (DACA) fight underscored for all of us, Democratic Senate Minority Leader Chuck Schumer (NY), has shown neither the instincts, strategic vision, nor spine needed to lead a fight of this magnitude and see it to the end. He will need to be pressured every step, every moment along the way, by people from across this country.
It’s very easy to throw up your hands. The Senate needs only 51 votes to confirm a Supreme Court nominee. There are currently 51 Republican and 49 Democratic senators (including two independents who caucus with the Democrats). Of those Democrats, there are the weak-willed and undependable Joe Donnelly (IN), Heidi Heitkamp (ND), and Joe Manchin (WV). There are the Democrats who apparently still reside in a different universe, like Sen. Richard Blumenthal (CT), who began yesterday by playing respectability politics on the confirmation process by first insisting that any nominee be swiftly considered. Facing outrage, Blumenthal walked that back. There were the Democrats pleading with Trump, in a scenario reminiscent of Oliver Twist to, please sir, pick a fair nominee. There are those who spent the day decrying Republican hypocrisy, to which I imagine the ruthless McConnell responded by rolling on the floor of his office laughing. Finally, there was Schumer droning on from the podium on the Senate floor in his usual process of making statements that are devoid of energy, passion, and conviction.
Some Democratic Senators get it: Kirsten Gillibrand (NY), Kamala Harris (CA), and Jeff Merkley (OR) all made strong statements suggesting fights to delay this nomination.
Democrats need to fully grasp that a Court dominated by the Christian right puts many fundamental rights enjoyed by the vast majority of the U.S. population at risk. The rights that make us a democratic nation in the first place. These include but certainly are not limited to voting rights; the right to abortion and contraception, to which women need access in order to exercise other rights; LGBTQ rights; the rights of prisoners; the rights of immigrants; affirmative action; access to health care; and the durability of anti-discrimination laws. And these are but a few examples.
Still, given the numbers, what can the Democrats do?
A lot.
First, instead of saying “let’s see who he picks,” they must start now and emphasize repeatedly that presidents under active investigation should not get to choose Supreme Court nominees. End of discussion. I will repeat: No nominees while the president is under investigation.
It’s pretty simple. This president is corrupt. He is under investigation for possibly colluding with foreign powers and was elected with the aid of foreign powers. This can’t be said enough; it is so profound and so routinely neglected as an issue by Democrats it makes my head explode. Matters pertaining to his own investigation, such as the validity of subpoenas, may come before the Court. He simply must not be allowed to choose a new justice.
Think for one second of the GOP’s reaction if Hillary Clinton was in the White House—if she were under federal investigation, and she could choose a SCOTUS nominee. Done yet? That’s my point: The Democratic mantra from today onward must be that no president under federal investigation should get to nominate a Supreme Court justice. Period. They should hammer this relentlessly, not only because it’s true, but because again, our democracy is at stake.
Second, Democrats must work with women’s rights, immigrants rights, LGBTQ rights, labor rights, environmental, and justice groups to put extreme pressure—daily, unrelenting political, media, and constituent pressure—on any and all Democrats who show the slightest sign of weakness in this battle. They must do the same for Republicans like Sens. Susan Collins (ME) and Lisa Murkowski (AK) who describe themselves as pro-choice, but have caved on many things in the past. They have to play hardball with Sen. Jeff Flake (R-AZ), who like another pretender, Sen. Rand Paul (R-KY), loves to declare he will stand up for what is right and, after a round of publicity, votes for what is wrong anyway. As we have seen in the past, these are senators more likely to state opposition to Trump than to actually use their power to be and stay in opposition to Trump. Constituents in their states and fellow senators must hold them accountable like never before.
Third, Democrats must also underscore the grave losses that will be borne especially by women, people of color, and immigrants even in so-called red states if a Trump nominee ascends to the court. We know that people across this country are fed up, and rightly so, with the empty promises of Washington power brokers. In state after state, Democrats and Independents are winning special elections for a reason. Senate Democrats need to understand they are far out of step with the depth of concern, fear, and energy of people across the country and with their passion for change. The public is far more progressive and far more interested in bold action than is suggested by Schumer’s tired speeches from the floor of the Senate.
Fourth, don’t yield an inch. Not a single inch. Refuse to meet with any nominee. It’s that simple. You have a roadmap from the days of Merrick Garland. Use it. In addition, do not provide a quorum in the judiciary committee, don’t allow votes on important issues of any kind, and use every procedural tool in the book to delay giving this president anything, much less a Supreme Court seat.
The Democratic leadership has been disorganized and running scared since Trump was elected. It’s time for this to end. Not only is a show of strength and determination by the Democrats literally fundamental to the future of this country, it is exactly the kind of approach that will galvanize voters across the spectrum. The Democrats gaining control of the House and hopefully the Senate this November may be the only thing standing between us and mass deportations, forced pregnancy, and the collapse of American democracy. It is that serious.
Donald Trump lost the popular vote, remains decidedly unpopular, and was elected with the help of foreign powers. He is a fascist with no regard for democracy. This is not a drill. This is not politics as usual. This is survival. The Democrats must treat it as such or, if we survive to write a history, be forever infamous for preemptive surrender.

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