Dems must fight RBG’s replacement
Trump’s far-right pick will destroy court’s balance — and imperil its impartiality.
Texans of a certain age are likely to recall a couple of ubiquitous highway billboards from the late 1950s and early 1960s. Cruising in their sturdy Ford pickups or their bat-wing ’59 Chevy Impalas past cornfields and cotton patches, through piney woods and rolling pastureland, motorists couldn’t help noticing the stark roadside admonitions: “Get US out of UN” and “IMPEACH EARL WARREN.”
Those iconic signs are a reminder that the right-wing effort to mold the U.S. Supreme Court into a staunch and dependable ally did not begin with the contentious U.S. Senate hearings on the nomination of Robert Bork, President Ronald Reagan’s pick for the court in 1987. That bitter dispute politicized highcourt nominations, but it was merely a landmark moment in a crusade that had begun a couple of decades earlier.
Conservative efforts to reshape the Supreme Court originated in the wake of Brown v. Board of Education, the monumental 1954 court decision that outlawed racial segregation in public schools. Brown was one of several landmark rulings that outraged the far right during the tenure of Chief Justice Earl Warren, a former Republican governor of California appointed by President Dwight Eisenhower in 1953.
All these years later, despite the fact that the United States remains a member of the United Nations and Warren was never impeached, the impetus for the campaign against him is on the verge of long-sought triumph. President Donald Trump’s rush to replace liberal icon Ruth Bader Ginsburg on the Supreme Court with a deeply conservative jurist before Election Day, just six weeks out when some states are already voting, has put the high court’s transformation into an intensely partisan, relentlessly ideological tool of the reactionary right within sight. Trump announced late Saturday afternoon his nomination of Judge Amy Coney Barrett to replace Ginsburg, a move that would cement into place a politically attuned conservative 6-3 majority, and would seem to guarantee a court drastically — and perhaps tragically — out of step with the needs of the nation for decades to come.
Polls across the spectrum show Americans want the next president, whomever that may be, to fill Ginsburg’s seat. Gallup polls taken before Ginsburg’s death showed Americans thought the court’s balance then was “about right.” And in every presidential election but one since 2000, more voters have preferred Democratic candidates, suggesting that despite the peculiarities of the Electoral College, the nation is not in favor of a drastic shift to the right.
Ginsburg was known for championing women’s rights and, as the court grew more conservative, for her powerful dissents. In that regard, she was much like her friend and ideological foil, the late Justice Antonin Scalia. When Scalia died in 2016, conservatives initially demanded that President Barack Obama appoint a moderate to fill his place — that is, before Senate Majority Leader Mitch McConnell broke all precedent and refused to even hold hearings under the pretense that the presidential election, less than a year away, was too close.
It was cynical nonsense. Obama, just like Trump now, had every legal right to make his appointment before the election, provided there was time for a full and fair vetting by a conscientious Senate. That Republicans only now sing that tune is hypocrisy no matter how they try to rationalize it. Instead, they should follow Obama’s precedent of reasonable compromise and choose a moderate to replace an iconic justice from either ideological edge. Doing so preserves the court’s only real source of power — the fragile faith by voters that its rulings aren’t determined by partisan passions at a time when seemingly everything else is.
Of course, Trump has no intention of doing what’s best for the country. He wants to press his advantage in hopes of naming a third justice in just four years — a feat that would make his first term one of the most consequential in U.S. history for the court and, through that, society.
So what should the Democrats do? Fight like mad to keep Trump from posting Barrett or any other far-right jurist on the high court. The consequences are simply too dire.
At stake is health insurance under the Affordable Care Act for 20 million Americans, the right to reproductive choice and fundamental questions of checks on executive power — all issues on which Chief Justice John Roberts has from time to time broken with his conservative colleagues to reach a more moderate outcome.
His capacity to play that role will be eviscerated if one more far-right justice is added to the court’s majority.
Democrats only have 47 votes in the U.S. Senate, but that doesn’t mean they are powerless to stop Trump.
Democrats at every level and other voters who oppose a rightward lurch of the court should take every opportunity to remind incumbent Republican senators that voting with Trump on this issue could lose them their seats. That message needs to be carried to every state with a competitive race, from Cory Gardner in Colorado to Susan Collins in Maine to John Cornyn in Texas.
If enough voters make that case, Trump may find it harder than he imagines to secure the 51 votes he needs.
Republicans should understand, too, that if Joe Biden wins and the Democrats take back control of the Senate, they will have other options, even if they fail to stop Trump from putting a third justice on the court. Democrats could expand the number of justices — a radical and troubling, but legal, move that many will see as the only way to restore balance to the court but will do little to safeguard Americans’ trust in it.
In their unseemly haste to fill Ginsburg’s seat, Republicans are forgetting that the court works best when its ideological shifts take place gradually.
Long ago, Justice Warren paid tribute to that understanding when he urged the nation’s public schools to integrate “with all deliberate speed” in 1955’s second Brown decision, laying out remedies. That intrinsically conservative admonition wasn’t the urgent transformation liberals demanded, though it was far faster than Eisenhower had wanted. But Warren saw that, despite the injustices of a slow integration, the country needed time to catch up to the court’s pronouncement.
There’s nothing deliberate, or conservative, about the speed with which the Senate majority leader is seeking to ram through the president’s nominee. Neither he nor the president are capable of the integrity of Warren’s example. But we pray there are at least four Republican U.S. senators who are — a hidden handful who understand what’s at stake if the fragile legitimacy of our nation’s most respected institution is shattered, a brave few who will draw a line just short of putting party, and power, over country.