Playing From Behind
A Path Forward for Democrats in the Fight for the Supreme Court
Yesterday, Justice Gorsuch sat for his first round of oral arguments, finally returning SCOTUS to a court of nine and displaying the kind of pushy confidence that would have made his predecessor proud. After Justice Scalia’s seat was left empty for over a year, Neil M. Gorsuch became the 113th justice of the United States Supreme Court just last Monday. We waited more than 400 days for the Senate, and the nation’s highest court, to be forever changed in less than one week.
Back in February 2016, Senate Majority Leader Mitch McConnell announced — just hours after Scalia’s surprising death — that no nominee from President Obama would be considered as a replacement. He took a gamble, and it paid off enormously. For nearly a year, Senate Republican leadership pretended that Judge Merrick Garland didn’t exist, while Democrats — following a brief and unsuccessful attempt to shame Republicans into “doing the right thing” — sat back and anticipated a bank shot win in the presidential election. Of course, Trump would go on to take the White House, while Senate Republicans held onto their majority. Under McConnell’s leadership, Republicans successfully confirmed their conservative pick by changing the Senate rules and removing the possibility for future filibusters of nominees to the high court.
The nation became a lot less democratic in this fight for SCOTUS, while Democrats proved that one of their greatest weaknesses is their lack of a comprehensive Supreme Court strategy.
And yet, as much of a calamitous loss as this year has been for Democrats, the party has an opportunity to gain ground where it never has before.
The Supreme Court could be the key to unlocking a whole new era of Democratic politics: one where liberals get the justices they want, and progressives don’t have to lose so often — or so “bigly.”
Wars aren’t won by whining. Almost nothing is.
For a variety of reasons — none of which seem reasonable looking at the scoreboard right now — there has been a lack of urgency from Democrats to adjust their flimsy and flawed strategy around the Supreme Court. But here’s the upshot: Their stunning defeat at all levels of government in the past year should be enough to push Democratic leadership to pursue and activate new strategies, starting with SCOTUS.
But for any real change to occur, the whining must end.
Placing blame on your political opponents and painting them as the bad guy is more ineffective today than ever before — see November 8, 2016. It’s poor messaging to point the finger, and it’s even worse strategy to think anyone is paying attention long enough to see it your way — especially when it comes to the Supreme Court.
Republicans cheated, stole and lied. But who cares? They still won. The spry, 49-years-young Neil Gorsuch is on the Supreme Court now, and he will influence America’s legal system immeasurably. Most voters don’t care how he got there. And the ones who do were already voting Democratic.
Democrats need to understand that when you lose you lose, and talking about why you lost only reminds voters that you did.
Don’t be precious and get real. The Supreme Court is political.
Democrats need a Supreme Court strategy that accurately reflects reality: There are no rules when it comes to political gamesmanship around the court, or its nominees. Only a handful of men and women on the North side of the Capitol still seem to care about Senate decorum, some of whom voted for the nuclear option, anyway — read: John McCain.
With the filibuster gone, and only a simple majority needed to confirm a Supreme Court justice, it should be much easier for Democrats to fall in line and accept that there are no rules anymore.
What Senator McConnell tapped into, without hesitation, was a lack of preciousness with the Supreme Court. Democrats need to do the same.
For too long, elite liberals have done their best to uphold and advance the idea that the Supreme Court is an institution insulated from politics. That is not true, and perhaps never was. With Bush v. Gore especially, it should be abundantly clear just how political the court can be.
That’s not to say that justices are the same as politicians. They are not. Supreme Court justices are bound by the law and the Constitution, and treating justices as political animals is foolish and in many ways, un-American.
However, nominees should be selected, vetted, and tested like they would be for any other political office. This is something Republicans have excelled at. In Jeffrey Toobin’s latest, we get an inside look at the pipeline the GOP has created for putting pro-life, conservative jurists on the Supreme Court and the federal judiciary. Why aren’t Democrats doing the same? Why don’t Democrats have a Leonard Leo? Or a liberal pipeline to SCOTUS?
Future fights over the Supreme Court need to be approached like any other political battle would be — with a ruthless eye on the prize. And I don’t mean the sportsmanship award. The only thing that should matter to Democrats is the scoreboard — which means getting progressives on the bench at all costs.
Mitch McConnell understood how high the stakes are for SCOTUS nominations, and he upended the Senate entirely to save the Supreme Court for Republicans. He’s not sorry, and he shouldn’t be. Because here’s the deal: These women and men of the Supreme Court serve for life, without any real ethics code or accountability. Until that changes, it is in each party’s best interest to get as many of their people on that bench as possible.
Republicans Vote For The Supreme Court, Why Can’t Democrats?
If it hasn’t come across by now, our third branch of government matters. I’ve been interviewing Supreme Court reporters about their experience covering the court this year, and each one of them emphasized to me how critical it is that more people understand the impacts of our nation’s highest court. In every interview, I hear some version of, “I wish more people understood how important the Supreme Court is to their lives.”
The last presidential election provides some evidence that more Americans are understanding the importance of SCOTUS and casting their vote with the Supreme Court in mind. According to exit polls from NBC News, Supreme Court appointments were the most important factor for how 22 percent of Americans voted in the 2016 presidential elections. In 2008, it was the most important factor for only 7 percent of Americans.
Unsurprisingly however, Republican voters are consistently better at drawing the connection between the Supreme Court and the president. In 2016, 75 percent of Trump voters cited the Supreme Court as an important factor in their decision to vote for Trump. And that makes sense. The Supreme Court was an instrumental part of Donald Trump’s platform — and perhaps one of his only consistent talking points during the campaign. In fact, at one point, Trump said voters have to vote for him, even if they don’t like him.
At a rally in Iowa, the candidate said, “If you really like Donald Trump, that’s great, but if you don’t, you have to vote for me anyway. You know why? Supreme Court judges, Supreme Court judges…No choice, sorry, sorry, sorry, you have no choice.”
Republicans are very good at talking to their voters about the Supreme Court because they do it often and they keep the message simple. A vote for me, is a vote for a justice that will have the final say on all the things that matter most to you. Period.
There is no reason Democrats can’t craft their message in the same way.
Donald Trump is not enough.
The Marble Palace on 1 First Street is the last stop for policymaking in this country, which is exactly why it’s the first thing Democrats need to be talking about in upcoming elections. Deporting immigrants, reproductive rights, affirmative action, and a whole swath of causes near and dear to liberals’ hearts are at serious risk — that’s where the conversation needs to start with Democrats.
Voters need a real reason to turn out for midterm elections that is something more than just pointing at the sitting president. Candidates need to get personal with their voters and more clearly draw the line between the Supreme Court and individual rights. Remind voters they will lose their right to an abortion, to marry, to vote, to remain in this country if Republicans control the Senate. Let’s make a concerted effort to reach millennials with a Supreme Court message, because in many ways they’ve got the most at stake.
Democrats have a lot to lose if one of their liberal lions leaves the Supreme Court. Or if Justice Kennedy steps down; a possibility that grows in likelihood as speculation continues to get pumped out of the SCOTUS rumor mill.
But this shouldn’t be a short-term strategy.
Democrats need to fundamentally change the way they communicate about the Supreme Court. They need to make it a signature issue for the party because the court’s power and influence isn’t diminishing any time soon. If anything, it will only continue to grow.
Mackenzie Long is an Account Executive at RALLY and the author of SCOTUSDaily, presented by Fix the Court, the only tipsheet covering the best of Supreme Court news and politics every day. Leading journalists, attorneys, law professors, and scholars from across the country use her tipsheet as their morning briefing on what’s happening in and around 1 First Street.
