In 2005, I wrote my first piece on then Judge John Roberts’s confirmation hearing for his nomination to the Supreme Court. It was this one:
In his opening statement to the Senate Judiciary Committee, Bush nominee to replace the late Supreme Court Chief Justice William Rehnquist, John Roberts, drew an analogy between the Supreme Court and umpires in baseball:
Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire. . . . And I will remember that it's my job to call balls and strikes, and not to pitch or bat.
It is an interesting analogy Judge Roberts draws. And it seems to me to be an excellent argument for why Judge Roberts must answer the questions put to him by the Senate. As any baseball fan knows, umpires are not uniform in the delineation of the strike zone. Some are "hitters" umpires. Some are "pitchers" umpires. Some call the high strike. Some call the outside pitch.
The strike zone has been changed by the clear theft of a seat on the Supreme Court by Mitch McConnell and the Republicans—the Garland seat. Now that Justice Kennedy has retired, this theft could be of generational duration. Everything we hold dear is at stake—not just what we have achieved, but what we aspire to. We are threatened with living in Robert Bork’s America, but delivered with John Roberts’s genial smile.
So what do we do? In the short term, we of course fight against the confirmation of Judge Brett Kavanaugh. But what happens after that? In my view, we have no choice: we can not follow norms that were blatantly violated by the Republican Party and Mitch McConnell. Those norms are no longer operative. Thus, we must plan to exercise all legal and constitutional power to undo the wrongs committed by McConnell and the Republicans. We must remake the Supreme Court.
How do we do this? The answer is simple—when Democrats return to power, they must exercise this power to undo this theft by reshaping the court and the courts. This requires simply passing legislation to that effect. It doesn’t require a constitutional amendment. Will it require nuking the legislative filibuster? Probably. But is the legislative filibuster worth saving anyway? And even if saving it has value, does that value outweigh leaving the court in the hands of extreme, partisan conservatives who gained this power through illegitimate means?
To me the answer is obvious—no it is not. A different objection to the idea of remaking the court is “Republicans will do it too.” Here’s a news flash for you—the Republicans already did it. You’re playing by rules that no one is following. No one of course, except saps. By which I mean Democrats.
So if Republicans continue to “do it too.” What’s the downside? They already own the Supreme Court. And what happens if the court is remade at every opportunity? It gets delegitimized. As someone who has believed in the Supreme Court as an important institution, though clearly political, I see this as an unfortunate result. But the alternative is worse. The alternative is an extreme conservative LEGITIMIZED court. We must force the rules to be rewritten and a new legitimacy conferred on the court. As we stand now, the court is a Republican vehicle, having become one when McConnell stole the Garland seat.
Where do we go from here? To the fight, with all legal and constitutional means necessary to remake the court and to reestablish it as an independent institution of our federal government. If you don't have the stomach for that fight as an elected official, I’m not sure you’re who we need in this fight.