The Democrats Can’t Afford To Back Down

Illustration+by+Amber+Chin

Illustration by Amber Chin

Joseph Hernandez, Junior Copyeditor

Americans, whether they prefer the Democratic or Republican Party, tend to believe that their party is represented by insufficiently effective advocates for the cause while the other party’s politicians are zealous Machiavellians who will do anything to win victories for their side.

Because political defeats are more easily remembered than victories, which people get used to quickly, over time, partisans tend to remember the moments when their team was the Washington Generals and the other team was the Harlem Globetrotters. 

For the American duopoly, this selective amnesia from party members is an electoral strength. You may not want to vote for “your” party — they never come through on the most important issues — but look at the horrible plans your rival party (which incidentally always seems to get what its supporters want done) has in store if they win the next, most-important-ever election!

Democrats and Republicans thus solicit a steady balance of electoral support from voters who largely find their politicians insufficiently radical, if not the lesser of two evils. Such voters have nowhere else to go electorally. A stray third-party or independent candidate may occasionally slip into local or state office, but the vast majority of voters feel compelled to pull the lever for the major left or right party, lest the other guys get into power and institute fascism/communism. The idea that choosing a third party is “wasting one’s vote” becomes a self-fulfilling prophecy.

This status quo is so comfy that Democrats and Republicans alike are perfectly content being perceived by supporters as weaker than the other and even losing elections, as it provides better opportunities for fundraising. The opposition to an overpowered party in power can fearmonger more effectively, in turn increasing the fervor of terrified donors. Inaction (rather, the appearance of action) is frequently the most lucrative course of action.

However, the recent vacancy on the Supreme Court presents the Democratic Party with a situation they can ill afford to meet with the same wishy-washy demeanor they had in 2016’s failed attempt to appoint Merrick Garland to the court. The Democratic base is livid at the Republicans’ decision to advance a nomination to the Supreme Court six weeks before an election, just four years after a Republican Senate held a Supreme Court vacancy open for the entirety of President Obama’s final year in office.

They are also worried that President Trump’s third Supreme Court appointment to date  would set the court’s conservative-liberal balance at six members to three. The specter of a 2:1 disadvantage looms especially large in the Democratic imagination, considering the relative youth of Trump’s appointees (Kavanaugh is 55, Gorsuch 53; a third justice would likely be even younger). Furthermore, if the upcoming election triggers a legal battle over the outcome that goes all the way to the Supreme Court, the lopsidedly-conservative bench could end up ruling in favor of a second term for President Trump. Not only would that give the president four more years, but a second term would probably produce at least one more opportunity to appoint a conservative to the Supreme Court.

A Supreme Court with (at least) seven ideologically unfriendly judges would provide a nearly insurmountable obstacle to the next generation of left-leaning legislation and judicial activism. With such resounding control over the one body with ultimate power to decide the meaning of the U.S. Constitution, the Republicans would arguably be too powerful for the Democrats to market themselves as effective foils. Once Thanos has all the Infinity Stones, in the absence of time travel, there’s really nothing the Avengers can do (and no reason to donate money to them).

The best-case scenario for the Democrats, should a 6-3 or 7-2 split come to pass, would involve “packing” the Court by adding new seats to the nine-member bench, a standard codified by the Judiciary Act of 1869. Indeed, the Democrats would be best served by making clear (as Senator Ed Markey did on Twitter) that if the Republicans successfully carry out an election season Court appointment, a future Democratic-controlled Senate will not hesitate to abolish the filibuster — a Senate rule that requires 60 of 100 senators to agree to end debate on a bill — and then pass, with a simple majority of 51 votes, legislation enabling a Democratic president and Senate to pack the court with liberal-leaning justices.

Of course, there’s no guarantee that Republicans wouldn’t just pack the court right back when and if they returned to power. A high-stakes arms race of additional judges could politically destabilize our already-divided nation further. In the wake of Justice Ruth Bader Ginsburg’s death, Democratic politicians face a serious threat to the stability of their sinecures. To keep their gravy train rolling, they must heed the demands of their base and try as hard as possible to forestall the confirmation of a new justice until after Election Day, if not Inauguration Day. The future of their party — and our country — hangs in the balance.