We should be celebrating. That’s a part of what makes this so extraordinarily painful and discouraging. Justice Anthony Kennedy’s retirement comes at the tail of a series of court decisions that have already radically shifted to the right, threatening voting rights, civil rights, and driving a spike through labor rights. It is so easy to imagine a different court, one where Merrick Garland was given the hearing he deserved. One where we’re now excited about the possibility of replacing a Ronald Reagan conservative whose reputation as a “swing vote” came only because Republican appointments that followed have been ever harder right.
That it took Kennedy’s vote to legalize same-sex marriage in a 5-4 decision, or that he joined with the majority on a decision in 2016 that pushed back on the ability of states to erode a woman’s right to chose, doesn’t make Kennedy a moderate. It makes him someone with a splinter of respect for legal precedent. That is decidedly not a quality of the Republican justices who followed. Trump will not be looking for a moderate, or a conservative. He’ll be looking for a fringe player who will help him complete the reshaping of America in the image of Donald Trump.
- States have demonstrated their willingness to pass laws that are clear violations of Roe and wait for the courts to strike them down. Not one year will go past where there is not an opportunity to address this issue. Whether Roe leaves at once or in pieces, it leaves.
- The court has already allowed states to chop away much of the power behind the Voting Rights Act, and there’s an eagerness on the right for more. Far more. The last vestiges of any—that’s any—race-based protections are sure to fall. And blessings of the court will return to those who openly discriminate by race, gender, or sexual orientation. From voter purges to bathroom bills, states will be ready.
- Turning a blind eye to mass incarceration, torture, extraordinarily harsh treatment of prisoners, and private prison abuse … those are the sure things. Expansion of the death penalty, as Donald Trump has insisted, to include a variety of other crimes seems more than possible.
But as much as those ideas may have the right firing up their Tiki torch parades. There’s just one issue that will be on Trump’s short list of must haves—he’ll be looking for someone who swears loyalty to Trump and promises to hold that a president can’t be indicted. Beyond that, Trump will be extracting a promise that the person to whom he hands the keys to our rights, knows first and foremost that his job is protecting Donald Trump’s privilege. Trump will be looking for a judge who agrees with every eye-rolling thing that his own attorneys have been putting out for months. Including that a president cant’ be charged with obstruction. And that Trump’s executive privilege protects him past, present, and future from any sort of discovery or investigation.
Donald Trump doesn’t even have to do the dirty work himself. Paul Manafort already made a motion in court to have the whole idea of a special counsel declared unconstitutional. The judge ruled against him. But that idea can—and will—end up right in front of whoever Donald Trump selects. So will every last aspect of this case.
Which is why it is critical that someone under criminal investigation not be allowed to literally select his own judge.
It’s not even a matter of making sure that Trump doesn’t select the most terrible of what is sure to be a godawful lot. And it doesn’t matter that Mitch McConnell has already confirmed that he’ll happily vote on Trump’s nominee this fall, before the election. Democrats can, and should, do every last thing possible, make every threat available, take every action in their arsenal, to make McConnell’s life a living hell.
But that won’t be enough.
This fight can’t be won in the Senate chamber. McConnell has already demonstrated his utter and absolute willingness to disregard any senate tradition and reverse any rule. Refusing to hold hearings for Merrick Garland is just the cherry on top of the vast mound of things McConnell has done to make the Senate anything but a body for reasoned debate. Chuck Schumer can’t win this fight for us. Neither can Elizabeth Warren or Kamala Harris or Bernie Sanders. Even if every Democratic Senator rises up, shakes their fist, searches the rules, and does their best to halt this process—And they should. Hopefully, they will—It. Will. Not. Be. Enough.
This is Mitch McConnell’s wet dream. This is the damnable moment for which he has lived every moment of his long, ugly life. This is his chance to wind back the dial on gay rights, civil rights, women’s rights … his chance to enshrine white privilege, male privilege, religious privilege, straight privilege for decades. In his dreams, his beak is already being carved onto Stone Mountain next to Stonewall. He wants it so bad he can taste it, and it’s right there. Right there. And we can’t give it to him.
That’s why this is a street fight. Literally a street fight. Because there is no other way. Donald Trump cannot be allowed to select the man who will free him from the rule of law and complete the destruction of democracy. Mitch McConnell is the only person who can slow that action long enough to give the nation a final say. Extraordinary pressure must be exerted if McConnell is to be turned from the course of handing Trump a free pass, and the nation a speed pass to intolerance.
Beltway insiders who were aghast that Sarah Sanders was given a free cheese plate and sent on her way when all she had done was support policies that hurt millions, should pull out their fainting couches and prepare to fall. Because what happened with Sanders should be only the slightest taste of what happens now. Mitch McConnell should not be given one moment’s peace until he agree’s to suspend any hearing on a Supreme Court nominee until after the fall elections. Until that agreement is made, he doesn’t get a moment. Not a moment. Not at his office, Not in his car. Not at a restaurant. Not at home. Not one moment.
The idea that politics happens in a vacuum and that someone’s decisions on Capitol Hill shouldn’t affect their evening of fine dining was always an idiotic notion. That’s not civility. That’s just the ultimate privilege—one where politicians can take away gay rights by day, then act affronted at not getting prompt and courteous service. McConnell and Trump have thrown away the last remains of that privilege by showing repeatedly that they will set aside rules, decorum, and tradition. We have to do the same.
Donald Trump can’t be allowed to write what will be no just his own Get Out of Jail Free card, but decades of repression.
Mitch McConnell. Not one moment’s peace. Until he agrees to suspend hearings.