Liberals and journalists (and no, those two are not necessarily the same thing) have spent the days since Supreme Court Justice Ruth Bader Ginsburg’s death on Friday repeatedly pointing out the hypocrisy of the Republican drive to replace Ginsburg. We have now heard over and over again, that it is a violation of the so-called “Garland rule.” Twitter is filled with people waiting to see which GOP senators will stand up against “double standards” and oppose the push to fill Ginsburg’s seat any time soon.
It is, in one sense, true that Republicans are zigging where they once zagged, but really they are being perfectly consistent. President Trump summed up the situation with uncharacteristic clarity while speaking to Fox News on Monday morning (emphasis mine):
“President Obama didn’t have the Senate [when it refused to vote on Merrick Garland’s nomination]…he didn’t get a lot of judges because you know why? He didn’t have the Senate. So again, that’s an election of a different kind. We had the Senate…when you have the Senate, when you have the votes, you can sort of do what you want as long as you have it. So now we have the presidency, and we have the Senate, and we have every right to do it, and we have plenty of time.”
Trump has it exactly right. Republicans had the Senate in 2016 when they refused to seat Garland. They have the Senate now, and so they will do what they like. That is the name of the game. It is a simple application of power in a system that has made it quite easy for Republicans to entrench their minority rule over the rest of the country.
In response to this straightforward muscle-flexing, plenty of commentators are calling on Democrats to do some muscle-flexing of their own — to move quickly on things like ending the Senate filibuster, granting statehood to Washington DC and Puerto Rico, and expanding the number of justices on the Supreme Court if they gain power in January.
Democrats should do all of these things, of course (except the Puerto Rican statehood part; a lot of pundit types seem to forget that Puerto Rico is a colony whose people should be allowed to decide their own future and not have it imposed on them from above). I know it is foolish to make predictions, but I will be, shall we say, pleasantly surprised if they do even some of them.
Some on Biden’s team have been aggravated by the calls on the left to expand the court, expressing particular annoyance with Sen. Edward J. Markey (D-Mass.) for urging Democrats to abolish the filibuster and add more justices if Senate Republicans move to fill the vacancy.
“People in your own party shouldn’t cause you problems 44 days out,” said one adviser, who like others spoke on the condition of anonymity to be candid.
Instead, Biden is—you guessed it—appealing to the GOP’s conscience. Again from the Post:
Speaking in Philadelphia, Biden issued an extraordinary appeal to his former Senate colleagues, pleading with moderate Republicans to oppose Trump and McConnell and saying the vacancy presents those senators with a moral test.
“We need to de-escalate, not escalate,” Biden said. “So I appeal to those few Senate Republicans, the handful who really will decide what happens: Please, follow your conscience. Don’t vote to confirm anyone nominated under the circumstances President Trump and Senator McConnell have created. Don’t go there.”
Biden may simply be trying to hold off on such bold calls until after he wins the presidency, but I wouldn’t really want to make that bet. And it is in this gap — the gap between a Republican Party that is quite happy to exercise raw power for its own benefit and a Democratic Party whose fealty to The Process outweighs its supposed loyalties to the vulnerable people it represents — that the decay in our political system is given free rein to fester.
There are few signs that this situation won’t get worse. What is required right now is the kind of political force that does not take our current structures, including an undemocratic Senate and an almighty Supreme Court, as eternal and inevitable. Only by dismantling those structures will we be able to achieve anything like meaningful progress. But Democrats love those structures more than they love true justice, and they see the use of raw power as dirty and distasteful. A Democratic Party that can’t even commit to expanding the court — something that has happened repeatedly throughout American history — is not a party that can be trusted to fundamentally counteract the authoritarian apartheid fantasies of the right, let alone serve as a check on corporate domination or help provide a path out of the climate crisis. Even more worryingly for our immediate prospects, it is not one we should assume will arm itself properly against Republican attempts to steal the 2020 election. Fingers crossed that I’m wrong.
Update, 7:30 p.m. ET: This article has been updated to clarify that it was Joe Biden’s campaign which was reported as being annoyed about calls to expand the Supreme Court, rather than Biden himself.