Ruthless

Let me make sure I have this right: Donald Trump has nominated Amy Coney Barrett to the Supreme Court seat held by the late Ruth Bader Ginsburg, assuring a polarizing nomination fight and potentially securing a vote to strike down the Affordable Care Act during a pandemic when the Court hears a challenge to the law in November.  Within hours of Ginsburg’s passing, Mitch McConnell telegraphed his intention to move ahead with expedited hearings. Lindsey Graham, the Senate Judiciary chair, has promised a confirmation vote in his committee just days before the election. Both McConnell and Graham contorted themselves beyond recognition to explain how the “principled” stand they took four years ago to deny a hearing to the nominee of a Democratic president eight months before an election is consistent with the urgency to seat the nominee of a Republican president while the nation is voting

At a surface level, all of this is predictable. The Barrett nomination, the outsized hypocrisy, and the rush to confirm are predictable actions of a Republican Party that long ago decided that only they have a legitimate right to shape the courts — or, for that matter, to govern. The vacancy created by Ginsburg’s passing finally handed them the opportunity to lock in an untouchable right-wing Court majority and complete a project decades in the making. After suffering through the failed nomination of Robert Bork and lost opportunities like David Souter, after being set back for a decade when a split in the Republican coalition produced a Clinton administration that was never supposed to happen, after facing the collapse of the whole project when Antonin Scalia inconveniently died while Obama was in the White House — after four decades of laboring they are finally on the cusp of victory. It is too tempting an opportunity to pass up. They have the power to push through this nomination and they intend to use it. They are doing it because they can

And yet . . .  at another level . . . none of this makes sense. The public strongly supports letting the election winner fill the vacancy. Barrett’s public antipathy to the Affordable Care Act, which faces a fateful hearing before the Court in early November, will allow Democrats to turn the nomination fight back to the pandemic and health care coverage where they are strongest politically (Democrats understand this and have been disciplined in their messaging). Vulnerable Republican senators will be tied to Barrett’s uncompromising views, hurting them with the politically moderate and suburban voters they need to hold their seats. While I have seen no evidence that the nomination fight does much to energize an already enthusiastic Republican base, recent history and present-day fundraising suggest it can and probably will bolster Democrats. Following the Kavanaugh nomination Republicans lost control of the House, and progressives raised a staggering $100 million in the days following Ginsburg’s death — a clear measure of motivation. McConnell’s aggressiveness has been clarifying, and the left is scared.

The smart political play would be to wait. Avoid re-litigating the Affordable Care Act weeks before Election Day. Just hold the seat open for now and make the election a referendum on who will fill it. That’s what McConnell did four years ago, when he had to invent a rationale for not holding hearings on Merrick Garland. It would be much easier this time around to apply the same logic. That he is not doing it now is telling. Rushing the Barrett nomination despite the damage it will do to his caucus is a sign that McConnell is not confident he will be majority leader in January. It is a power play rooted in weakness.

A few days ago I wrote about the cycles of political party systems and suggested that we are in the midst of a realigning moment following the collapse of the Reagan coalition that dominated our politics for forty years during what political scientists call the sixth party system, creating an opening for the emergence of a seventh party system built around a young, diverse and growing majority. That’s significant because conditions that applied to the old order may not be transferable to the new.

Maybe McConnell believes a lifetime Court appointment is worth trading away his Senate majority because he thinks he can win it back in two years. That would be a reasonable calculation if the party of the president is likely to lose seats in midterm elections as was almost always the case during the sixth party system. Or maybe he figures he can obstruct Democrats as minority leader the way he did when they had a governing trifecta during the first two years of the Obama administration. Perhaps he sees the veiled threats from Democrats to keep “all options on the table” if they are victorious in a few weeks as little more than bluster. That seems reasonable as well. How often have Democrats been accused of being weak or too quick to capitulate? As a minority party during a period of Republican dominance, Democrats often struggled to hold together a broad coalition of liberals and moderates without the advantages that come from being in charge.

But what happens if that minority emerges in the year ahead as a viable majority?

McConnell shouldn’t be so sure of what will happen next because we are at a tipping point in our politics. If a new party system emerges, it will be some time before we understand its dynamics, but odds are they will be different from the present one. For example, the fifth party system opened with twenty years of uninterrupted Democratic presidencies starting with the election of FDR, washing away decades of almost uninterrupted Republican governance. Some party systems have been characterized by divided government but others have not. The recent past may be a poor guide to the future. 

In the sixth party system, Republicans found it easy to remain united because they wielded the power of the majority with the backing of a majority of the country. Should Democrats emerge victorious in November these roles will flip. Democrats will need to deliver for their voters, and that means preventing Republicans from blocking their efforts while pushing the legislative process to its limits to address the multiple crises facing the country.

This is where McConnell’s actions this month could prove devastating to his party. There is a big difference between protecting the rights of the minority, which Senate procedure is designed to do, and using a minority position to suffocate the wishes of the majority. Republicans who collectively represent a minority of the population despite holding a majority of Senate seats are using their power to advance the nominee of a president who lost the popular vote against the stated will of a majority of the country. That they have the authority to do this is without question, because the Senate represents states and the president is selected by the Electoral College. But it is not always wise to do something just because you can, especially when what you are doing is anti-democratic.

By moving ahead with the Barrett confirmation, McConnell is giving Democrats the political justification they will need to remove privileges long afforded the minority. Options that are ridiculous to contemplate today would be available to advance under the umbrella of political reform. Eliminating the filibuster or making it difficult to sustain. Adding justices to the Court and expanding the size of the federal bench. Statehood for Washington, DC and a referendum on statehood or independence for Puerto Rico. Any or all can be accomplished with simple legislation and political will. In the supportive political environment of a new party system, an emerging majority will view them as reasonable ways to curtail the remains of a corrupt and corrupted Republican regime.

If they win, Democrats will feel overwhelming political pressure to consider options like these, and McConnell’s actions now will make it easier for them to entertain what just weeks ago would have been considered fringe ideas. They will do it in the interest of converting their voter coalition into a lasting regime. They will do it to deliver for their newfound majority. They will do it because it will be politically wise. And like Republicans today, they will do it because they can.