vision 2020

Democratic Senators Are All But Resigned to the Supreme Court’s Hard-Right Turn

Outside the Supreme Court building on September 23. Photo: Matthew Pillsbury

It didn’t take long after 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 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 re-stabilize 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 Ocasio-Cortez, 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.”

*This article appears in the September 28, 2020, issue of New York Magazine. Subscribe Now!

Democrats Are All But Resigned to SCOTUS’s Hard-Right Turn