New York Magazine

Vi­sion 2020: Gabriel Debenedett­i

There’s No Good An­swer Demo­cratic sen­a­tors are all but re­signed to the Court tak­ing a decades­long hard-right turn.

- T didn’t take long

Iafter Ruth Bader Gins­burg’s death for Se­nate Democrats to ad­mit to them­selves that they may be essen­tially pow­er­less to stop her re­place­ment. On a pri­vate call the next day, a Satur­day, they ac­knowl­edged the re­al­ity that Mitch McCon­nell and his Se­nate Repub­li­cans, who hold the ma­jor­ity, could prob­a­bly hold a party-line vote to ap­prove Don­ald Trump’s nom­i­nee. They knew, too, though, that they still had to do every­thing they could to try to fight it—even though their best bets, like en­cour­ag­ing a groundswel­l of pub­lic pres­sure and try­ing to per­suade a few mod­er­ate Repub­li­cans to hold off on the con­fir­ma­tion un­til af­ter the elec­tion (at which point maybe one or two might have se­cond thoughts on the judge) were, at best, stretches of his­toric pro­por­tions.

The Democrats’ ac­tual best play, many rea­soned, was to try to use the out­ra­geously rushed con­fir­ma­tion to re­mind Amer­i­cans prepar­ing to vote in Novem­ber just how dra­co­nian a se­cond Trump term, paired with a Trump-dom­i­nated court, could get. In a memo cir­cu­lated qui­etly to some of the Demo­cratic Party’s top of­fi­cials and pun­dits the fol­low­ing Mon­day, Joe Bi­den’s cam­paign urged a fo­cus not on the process of re­plac­ing Gins­burg but on pol­icy is­sues and the need to make the stakes of the pick painfully clear: “These fights en­er­gize vot­ers who are frus­trated with Don­ald Trump’s

re­lent­less ef­forts to tear down the [Af­ford­able Care Act], roll back en­vi­ron­men­tal pro­tec­tions, place crip­pling re­stric­tions on choice in states across the coun­try.”

Speak­ing in Philadel­phia that Sun­day, Bi­den him­self tried, at first, to plead with GOP sen­a­tors to con­sider the cri­sis they would be feed­ing by swiftly seat­ing a new jus­tice af­ter stonewalli­ng the left-lean­ing Mer­rick Gar­land’s nom­i­na­tion un­der com­pa­ra­ble cir­cum­stances four years ago. But by Mon­day, Bi­den had re­turned his at­ten­tion to wa­ver­ing swing-state vot­ers who backed Barack Obama be­fore vot­ing for Trump in 2016. “This is not a par­ti­san mo­ment, for God’s sake,” he said into the cam­eras in Man­i­towoc, Wis­con­sin. “This has to be an Amer­i­can mo­ment.” This time, he didn’t men­tion Gins­burg or the Court once.

“Vot­ers don’t care about Se­nate process, and they shouldn’t,” Sen­a­tor Chris Mur­phy of Con­necti­cut told me as the fi­nal GOP sen­a­tors were fall­ing in line. “The Repub­li­cans are go­ing to try and rush through a nom­i­nee be­cause the first case be­fore the Court af­ter the elec­tion is a case to in­val­i­date the en­tirety of the Af­ford­able Care Act.” A few hours ear­lier, a top party strate­gist looked at it an­other way: “What the fuck are Democrats sup­posed to do? The ACA could be over­turned by Trump’s Supreme Court the week af­ter the elec­tion, in the mid­dle of a pan­demic. There’s no good an­swer.”

Democrats are en­gag­ing the re­al­ity that the Court may be tak­ing a decades-long hard-right turn, but they think they can sway ac­tual vot­ers who are, for now, more likely to be wor­ried about their health in­sur­ance and when their next covid-19 stim­u­lus check will come.

For their part, Repub­li­cans are bet­ting the Court fight mo­ti­vates their base. A wide range of sen­a­tors who are strug­gling to keep their seats (like Colorado’s Cory Gard­ner and North Carolina’s Thom Til­lis) im­me­di­ately sided with McCon­nell and Trump, de­cid­ing they can’t af­ford to lose one Repub­li­can sup­porter even if they’re alien­at­ing swing vot­ers. But it’s Democrats who may have more rea­son for po­lit­i­cal op­ti­mism, even as the Court slips fur­ther away: The Demo­cratic do­na­tion plat­form Act­Blue pro­cessed a record-oblit­er­at­ing $160 mil­lion in the three days af­ter Gins­burg’s death, with much of the cash go­ing to Se­nate can­di­dates—a use­ful flood of funds to turn out vot­ers even in pre­vi­ously over­looked races and a clear sign of the lib­eral base’s en­gage­ment as vot­ing be­gins.

Still, anx­i­ety about the Se­nate’s fu­ture now looms past Novem­ber. For years, ac­tivists have pushed Demo­cratic sen­a­tors to con­sider elim­i­nat­ing the leg­isla­tive fil­i­buster, which ef­fec­tively re­quires 60 votes to pass any law in the Se­nate—giv­ing the mi­nor­ity party dis­pro­por­tion­ate power— and to think about pack­ing the Supreme Court if they take over in Jan­uary. If they don’t, the think­ing goes, Repub­li­cans will be get­ting away with years of asym­met­ric war­fare and Demo­cratic leg­isla­tive am­bi­tions may be thwarted be­fore they even get started. Bi­den’s cam­paign prom­ises have grown in­creas­ingly ex­pan­sive and pro­gres­sive as the pan­demic rages on, but those prom­ises might mean very lit­tle if McCon­nell stonewalls him from the start of his term—pos­si­bly mean­ing much of Trump’s de­struc­tion would re­main in­tact. This drum­beat in­ten­si­fied af­ter al­most ev­ery Repub­li­can sen­a­tor lined up be­hind Trump to move for­ward with his nom­i­nee, even af­ter many had promised they wouldn’t—some as re­cently as this sum­mer, as in the case of Iowa’s Chuck Grass­ley. “No one should be sur­prised that a Repub­li­can Se­nate ma­jor­ity would vote on a Repub­li­can pres­i­dent’s Supreme Court nom­i­na­tion, even dur­ing a pres­i­den­tial-elec­tion year,” said Sen­a­tor La­mar Alexan­der, a re­tir­ing Ten­nessee Repub­li­can whom some Democrats had hoped to win over.

It’s all enough to make lib­er­als ques­tion what, ex­actly, is even the point of try­ing to co­op­er­ate now, es­pe­cially if a Supreme Court that is one-third Trump-ap­pointed threat­ens to in­val­i­date any­thing they do. “Leader McCon­nell has de­filed the Se­nate like no one in this gen­er­a­tion and may very well de­stroy it,” said Chuck Schumer, the Se­nate mi­nor­ity leader, the day af­ter Bi­den spoke in Wis­con­sin. “If Leader McCon­nell presses for­ward, the Repub­li­can ma­jor­ity will have stolen two Supreme Court seats, four years apart, us­ing com­pletely con­tra­dic­tory ra­tio­nales. How can we ex­pect to trust the other side again?”

But he isn’t tak­ing the next step and

It’s all enough to make lib­er­als ques­tion what, ex­actly, is the point of try­ing to co­op­er­ate.

call­ing for con­crete changes to how the Se­nate works, and Bi­den cer­tainly isn’t either. The nom­i­nee has al­ways seen his cen­tral propo­si­tion as a bid to resta­bi­lize a po­lit­i­cal world gone in­sane. “We can’t keep rewrit­ing his­tory, scram­bling norms, and ig­nor­ing our cher­ished sys­tem of checks and bal­ances,” he said in Philadel­phia. Bi­den is bet­ting ex­hausted Amer­i­cans want this kind of mes­sage now, not prom­ises of a re­designed Se­nate and more par­ti­san com­bat. In the words of one se­nior Demo­cratic Se­nate aide, “There’s no in­cen­tive for Se­nate Democrats to lay out all the op­tions right now and give Fox News the bo­gey­man.”

There may still be some po­lit­i­cal use in ex­pos­ing in­di­vid­ual Repub­li­cans’ hypocrisy, com­par­ing the cur­rent words of a few law­mak­ers who are in tight re­elec­tion races with their 2016 state­ments on Gar­land. No sen­a­tor has been more bla­tant than South Carolina’s Lind­sey Gra­ham, who re­peat­edly in­sisted he would oppose seat­ing a new jus­tice in 2020—even ask­ing Democrats to use his words against him—but who is now essen­tially shrug­ging. “I am cer­tain if the shoe were on the other foot, you would do the same,” he wrote to Democrats soon af­ter Gins­burg died, im­ply­ing that he’d been rad­i­cal­ized by the Ka­vanaugh hear­ings. “Repub­li­cans think they can get away with this lie be­cause the whole coun­try has be­come anes­thetized to ly­ing,” said Mur­phy.

Back in D.C., Democrats are now de­cid­ing how to han­dle the new judge’s nom­i­na­tion and the con­fir­ma­tion process it­self. “We must use ev­ery tool at our dis­posal,” said Rep­re­sen­ta­tive Alexan­dria Oca­sioCortez, join­ing Schumer in call­ing on Repub­li­can sen­a­tors to de­lay the process.

Yet the tool­box has proved emp­tier than many pro­gres­sives had hoped. Some briefly con­sid­ered a pro­posal for the party’s mem­bers of the Se­nate Ju­di­ciary Com­mit­tee (which runs con­fir­ma­tions) to boy­cott the nom­i­nee’s hear­ings to highlight the un­fair­ness of the process. But there’s a more pop­u­lar op­tion still: to rely on the com­mit­tee’s most fa­mous mem­ber, who has a his­tory of mak­ing life dif­fi­cult for Repub­li­cans un­der her ques­tion­ing, to seize the spot­light. A few hours af­ter Mitt Rom­ney sided with Trump, ef­fec­tively stub­bing out any re­main­ing lib­eral faith that the con­fir­ma­tion could be stopped, I got a call from a de­spair­ing se­nior Demo­crat who was try­ing to rekin­dle a glim­mer of hope in the broader fight against Trump­ism. “If we don’t make this about Ka­mala Har­ris stand­ing up to this guy and giv­ing him a mid­dle fin­ger,” he said, “we have mon­u­men­tally fucked up.”

 ??  ?? in­side: Roast­ing mil­len­ni­als on TikTok / No jus­tice for
Bre­onna Tay­lor / Re­mem­ber­ing Cen­tury 21
in­side: Roast­ing mil­len­ni­als on TikTok / No jus­tice for Bre­onna Tay­lor / Re­mem­ber­ing Cen­tury 21

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