Editorial Law and Policy

Memo to Chuck Schumer: Stop Dithering and Start Fighting. Now.

Jodi Jacobson

I have a question for Chuck Schumer: What don't you get about the fact that an illegitimate president should not be allowed to choose nominees to the Supreme Court?

I have some questions for Chuck Schumer.

Senator Schumer: You seem to be treating the nomination of a second Supreme Court justice by Donald Trump as business as usual. But it is not. Nothing is usual. Nothing is normal. What don’t you understand about this?

What don’t you get about the fact that Trump is under federal investigation and possibly facing criminal charges? Or that he has actually suggested he can pardon himself?

What don’t you get about the fact that he was aided in his election by foreign powers, which to me would be the very definition of an attack on our country and democracy and therefore implicate Trump in treasonous activity? Or that if in fact his election was rigged, that every choice he makes, every seat he fills, is illegitimate?

What don’t you get about the fact the Trump is anti-democratic, racist, xenophobic, misogynistic, and promoting violence across this country? What don’t you get about the fact that a president under criminal investigation, influenced by foreign powers, and actively undermining our democratic institutions should not get to pick someone who has lifelong influence over those institutions? That no such person should be able to determine the course of this country for decades to come?

What don’t you get about the fact that, in a premeditated move planned before President Obama nominated anyone to replace Justice Antonin Scalia, Mitch McConnell stole a Supreme Court seat? That when he stole that seat, McConnell didn’t blink an eye at polls showing the majority of registered voters wanted then-nominee Merrick Garland to get a hearing and a vote? What don’t you get about the fact that McConnell is ruthless and couldn’t care less about democratic principles or people’s lives? That the entire Trump family and very likely many members of the Trump administration have financial ties to dictators and autocrats, and that even Justice Anthony Kennedy’s son was involved in Trump’s finances? That challenges to investigations of Trump and his cronies could appear before the Supreme Court? Or that the accomplice in that theft, Neil Gorsuch, has already provided the fifth vote eviscerating labor rights, voting rights, the rights of Muslims, and the rights of pregnant people to medically accurate information—rights necessary to the lives and well-being of the vast majority of this country’s population?

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What don’t you get about the fact that reproductive rights, voting rights, LGBTQ rights, worker’s rights, the rights of people of color—all of these and more are at great risk? Do you care? People across this country of every political stripe are concerned about critical issues that will come before the Court, including, as John Nichols writes, the potential “abuses of presidential powers, privacy rights, worker rights, protection of public lands, agribusiness consolidation, and a host of other legal issues that might raise the right questions about the wrong nominee.”

A leader must not only acknowledge these realities but work to get other people to understand what is at stake. “Cementing in place a radical, minority-driven ideology in an already-ideological Supreme Court will change this country for at least a generation,” essayist and poet Thomas Neuburger told me while discussing the current situation. “Who, even among Trump voters, wants to dismantle the whole of the American regulatory state? Who would tolerate it? Not just Social Security and Medicare, but the whole lot of it, and return to the 1920s government?”

Millions of people across this country are waiting for you, depending on you, to lead; to finally stand up and do something that shows you understand what is at stake. To show all of them what is at stake. If ever there were a legitimate reason for holding back a Supreme Court nomination process, that time is now.

Stop dithering, Senator Schumer. It’s time to get real. It’s time to put aside your useless respectability politics and show some leadership. It’s time to stop worrying about the “Trump voters” you will never win, and who in any case have now proved themselves indeed to be deplorable.

Now. Right now. Today.

Oregon’s Jeff Merkley gets it.

New Jersey’s Cory Booker gets it.

I’m hearing, however, you still don’t get it. Amanda Terkel reports, for example:

[O]ther Democrats argue that denying the president a Supreme Court nominee is a losing strategy. Their key objectives are 1) to keep the Democratic caucus united in voting against a Trump nominee, and 2) to hopefully win over Sens. Susan Collins (R-Maine) and/or Lisa Murkowski (R-Alaska) by convincing them that the nominee is extreme. 

Funny, because the GOP, which represents a minority of the country, stole a Supreme Court seat right from under your noses, against the will of the people, and nevertheless won the 2016 election to control all three branches of government. And far from strategic since if anyone has shown themselves not to be an honest broker, it’s Susan Collins. Not to mention that a senator from a state with a population of fewer than 1.4 million people should not dictate the rights of a country of nearly 327 million.

What you don’t seem to get is that it inspires people to see leadership, to see people in power make clear they have convictions and principles and will fight to the end to support those principles on behalf of the good of all people. It is downright dispiriting to see you drone on about process and civility and plead with Trump to do the right thing. If ever in our history there was a man less concerned about the right thing, it is Trump. And if ever in our history we needed someone to lead come what may, it is now. Our democracy is at stake.

So here’s what you must do.

Call the question. Make clear to everyone you will not participate in confirming the nominee of a president now under investigation. Period. Stop taking the temperature at focus groups. Stop looking at polls. Lead people to where they need to be.

Make the stakes clear to every senator. Make it clear to every senator that anyone who votes for a Trump Supreme Court nominee will be voting to eliminate abortion rights, LGBTQ rights, the rights of people of color, and the rights of workers. Make explicitly clear that every senator voting for Trump’s nominee will be culpable in an extremist, white supremacist agenda undertaken by an illegitimate president who has stolen children from their parents and can’t even find them.

Act fearlessly. As Nichols writes:

Trump and McConnell will try to overwhelm opposition with a shock-and-awe strategy that relies entirely on fostering a sense that their attempt to redefine the judicial branch of the federal government cannot be stopped.

But it can be stopped. This is the essential understanding that must be embraced by Americans who, in these unsettled times, seek to maintain the rough outlines of a system of checks and balances. Trump’s nominee must be approved by McConnell’s Senate.

Keep your people in line. Make sure Indiana’s Joe Donnelly, Nebraska’s Heidi Heitkamp, and West Virginia’s Joe Manchin know they will get no support from you or the party unless they abstain from voting or vote no on any nominee. It’s pretty clear that teachers in West Virginia know something is not working for them and I am pretty sure that the rest of the state knows this, too. Make sure Colorado Democrat Michael Bennett, who helped us get Neil Gorsuch in the first place, knows his job is on the line if he does not play to win.

Put pressure on Maine’s Susan Collins and on Alaska’s Lisa Murkowski, yes, because that is necessary. But put equal pressure on Republicans Dean Heller and Cory Gardner. Heller is hanging on by his fingernails in Nevada, and you can energize the Democratic base for challenger Jackie Rosen by showing strength and leadership in the Senate now. Tell Heller that if he decides to vote to eliminate abortion rights in the months before his election, you will remind his voters about that vote every single day.

Colorado went for Clinton by more than 5 points over Trump in 2016 and is only getting more Democratic, so there is no reason that Gardner gets a pass of any kind on this vote. As Jeff Hauser, director of the Revolving Door Project, notes, Gardner already does not see eye to eye with members of this administration on some things. “Gardner has been willing to use his power as a Senator to restrain Sessions’ war on marijuana. Being seen as fighting for Colorado’s right to legalize marijuana is pivotal to Gardner’s survival politically.” Hauser continues, “Gardner has been more willing to use his power as a Senator to block Trump than oft-quoted `pundit’ Senators like Jeff Flake, Ben Sasse, and Bob Corker while facing an uphill battle for re-election in 2020, and this nomination gives him a big and needed opportunity to be independent of Trump in a state where Trump is deeply unpopular.”

Interestingly, when it came to Merrick Garland, Gardner wrote:

We stand at a pivotal point in our nation’s history. The Obama Administration continues to use the judicial and regulatory systems to push through its legislative agenda, shifting the balance of power that our Founders established …. That is why the next president of the United States should have the opportunity to fill the vacancy on the Supreme Court. Our next election is too soon and the stakes are too high; the American people deserve a role in this process as the next Supreme Court Justice will influence the direction of this country for years to come.

Surely, Mr. Gardner would agree that, as opposed to a two-term president elected overwhelmingly with the majority of the popular and electoral votes, Trump’s presidency represents a “pivotal moment?” I am sure that the voters of Colorado do. Make him remember this.

In other words, Senator Schumer, you can and should play hardball with Gardner. Starting now.

Indeed, you should just play hardball, as even Chris Matthews noted.

Refuse to participate in roll call votes. Shut down the Senate. Refuse to move a vote on anything. At all. Because no nomination should be considered until after the new Congress is seated.

In February 2016, Senate Republicans made clear—well before any actual nominee was put forth—they would block any effort by President Obama to fill the seat of deceased Supreme Court Justice Antonin Scalia because of the impending presidential election, a move with no modern precedent. All 11 members of the Republican-controlled Senate Judiciary Committee followed suit, saying they would not “move forward with any consideration of Obama’s nominee.” In other words, Republicans engaged in the premeditated theft of a Supreme Court seat from a president who had twice won an overwhelming majority of the popular vote.

And then, in a speech in Kentucky that August, McConnell said: “One of my proudest moments was when I looked Barack Obama in the eye and I said, ‘Mr. President, you will not fill the Supreme Court vacancy.'”  I hear the racism dripping from his voice in that quote. Don’t you? 

This gives you a sense of the sheer ruthlessness of Mitch McConnell and is one of the reasons we have Donald Trump.

You can’t let them roll you now, because you represent all of us. And we will not stand for it.

There is no excuse, Mr. Schumer, for delaying action or being weak. Senate Democrats face a clear moral and political choice. You may not be ready or willing to lead, but you must.

November is coming. This nomination should not go forward until the new Senate is seated.

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