We are faced with three bitter truths: (i) Republicans scandalously robbed President Obama of his constitutional right to appoint a Supreme Court Justice, (ii) President Trump will appoint the next Justice, and (iii) Democrats can’t stop no. ii from happening.
Democrats may be able to filibuster one nomination, maybe two. Maybe some nomination will flame out under the weight of separate scandal or other miscue. But — given the rightful demand for total Democratic obstruction as pay-back, it is a virtual certainty that at some point in the process Republicans will scrap the Supreme Court filibuster and will appoint their favored Justice nominee.
In other words, we all seem to know how this movie ends. Republicans will get a Supreme Court pick to their liking, and the country also will lose the Supreme Court filibuster — a vital, necessary check on extreme and bad nominations, the absence of which threatens serious, lasting harm to the Supreme Court and our society.
Bleak? Hell, yes. But, for serious minded folks, these hard truths, and the undeniable stakes, force three conclusions: (i) we need to try to get the least damaging Supreme Court appointment possible, (ii) we need to consider if at any point the Supreme Court filibuster can be preserved, and (iii) if we get the worst case scenario above, we need to have at least won the public debate and exacted a political toll on the Republicans. All of this will be hard, and will require far more skill and effort than what is currently happening . . . which is nothing.
Let me make this very simple: everyone in the country understood that the Republicans refused to consider Merrick Garland. Everyone in the country needs to understand now that Democrats will refuse to confirm any nomination that does not meet the Merrick Garland standard.
Simple. So, here is my proposed path. One, Democrats immediately — before Trump announces his pick — have to begin publicly framing this nomination fight around the Republicans’ abject refusal to consider Merrick Garland. That history can’t fade away; it has to be forcibly injected back into the public discussion. Message: this next particular pick is not a normal pick and will not follow normal procedure. Democrats have to make the case to the public-at-large that the Republicans’ bad faith did not suddenly disappear or become condoned. The wrong has not been righted, and we are in the middle of the same fight.
Practically, that means the following: Just like with Merrick Garland, Republicans have to consult with Democratic leaders to select a moderate’ish nominee who could appeal to both parties. As Obama met with Republicans and asked for a consensus candidate, so too must Republicans cooperate with Democrats. Indeed, Senate Democrats should be demanding reciprocal WH discussions now. And as Obama picked a respected, long-serving, prominent judge, with bipartisan support for his original appointment, Democrats should be laying down those markers now. And if Trump does not meet these standards, Democrats should similarly refuse to meet with any such nominee.
What I am talking about here is the need for the Democrats to pay attention to narrative, to invest in public persuasion, to lay down demands, and to fight back smartly, not lazily. The essential demand is the fair and reasonable deal that Obama offered the Republicans. We Democrats deserve no less when talking about the same nomination. And don’t ever call it “Scalia’s seat”; call it “Obama’s seat.”
Two, with the above as background, announce now that Republicans need Democratic votes because of the filibuster. Embrace the filibuster, defend the filibuster, explain its importance here. Act like you have power because you do have power. Americans have to know that if Republicans push through a nominee, they will have devastated two norms — President Obama’s right to appoint a nominee and the minority’s filibuster rights. If Republicans destroy both of those, it will have been truly lawless. Don’t assume that the public understands this!
Three, announce that the failure to follow these reciprocal standards will by itself be a grounds for a filibuster. Before any individual issues arise with this or that nominee, let the public know that Democrats are fighting a long fight for fairness, process and larger governance protections for both sides. Let everyone know: If Republicans do this, Michael Moore is eventually headed to the Supreme Court. Don’t think you are not going to pay an equal price.
Four, take this governance fight directly to the nominee in the confirmation hearings. Don’t politely pretend that he or she is a bystander to this. What self-respecting public servant would be complicit in this power grab? What “admirer of the Court” would willingly accede to his or her chair lacking legitimacy, and knowing the institutional damage done to the Court itself? Shame this nominee on televised hearings. Leave him or her bloodied with their complicity, if need be.
Five, combine this process argument with the substantive attacks on the nominee’s no-doubt extremist views. Yes, call out the radical, unpopular, fringe views of the inevitable nominee. But also ask: What right does Trump, a popular vote loser, have to impose such a fringe candidate on you the voter? When and how did Trump’s prerogatives as to this seat exceed President Obama’s? What precedent exists to allow such a blatant steal of Obama’s seat? And (yes, if only for effect), keep re-introducing Merrick Garland as the obvious compromise candidate that all Americans can agree on.
What does all this do? It opens up a path to a strong, reasoned, articulated and durable opposition fight. It explains and strengthens the Democratic filibuster fight with advance groundwork. It opens the door to possibilities. Don’t just go through the motions, fail and lose the filibuster too. Put your heart and soul into it, explain yourself to the American people and then hope for the best based on your best arguments. Many nominations were preceded by one to three failed nominations. If that happens now, this coherent, proud background argument may only grow in strength. Our best and only hope is a protracted nomination process and all the attendant uncertainties. If not, make it clear what the Republicans actually did. They denied a President his choice and eliminated the Congress’s age-old filibuster power. Whatever you do, please don't go through the motions of voting “No” until Republicans publicly smack you down and impose their choice.
So, most of all, I am imploring Democrats to show some self-respect, some f*ing spine. People don't want to vote for someone who doesn't look like he or she even knows how to defend themselves! Start right now demanding at least the same respect that President Obama showed the Republicans as to this exact same nomination.
Show a larger, coherent, impassioned defense, and show that you are eager to fight and die on principles. If need be, lose not just with dignity but with ferocity.
Do the above and who knows? Maybe if you force two or three nominations, the next one won't be as bad. We can talk again then.
But lay down these markers now, before Trump announces his pick. If Dem leaders don't do this, they will have lost half the fight, telegraphed their subservience, and demonstrated themselves to be a flaccid opposition party.