Yesterday, Supreme Court Justice Anthony Kennedy – a conservative Ronald Reagan appointee who from time to time was the swing vote on the Court on some key social issues like abortion, LGBTQ rights, and health care – announced that he’ll be stepping down from the Court in July. As one might imagine, the entire political world was tossed upside down because 1) SCOTUS vacancies are rare and anything rare politically in DC is like the “Hot” sign at Krispy Kreme and 2) President Donald Trump would be getting his second – and likely most consequential – Supreme Court pick in less than two years and while under the cloud of an investigation into whether or not he conspired against the United States to defraud the voters of the United States during the presidential election of 2016 by colluded with a foreign adversary. So, yeah, to paraphrase our great former Vice-President Joe Biden, the Kennedy vacancy is a BFD right now.
Concerning, however, has been the response of some within the progressive coalition who have decided to ignore every argument we made in 2016 about the ability of a president to nominate a Justice at any point during their term and instead double down on the same tactics that the Republican Party used 2 years ago because, well, it worked and we just want to win. After railing about the depravity and blatant constitutional violation that was the Senate Republican’s successful refusal to hear or seat Barack Obama’s final Supreme Court nominee, the uber-moderate federal district court judge Merrick Garland. Increasingly, Senate Democrats and the activists at the grassroots have been advocating the theory that no Supreme Court pick should even be heard in the Senate Judiciary Committee during an election year – which we have every other year – until the voters have had their say. For reference, just look up #McConnellRule on social media and you’ll see all the talking points. It’s an aggressive posture, a strong response after two years of getting the metaphorical shit beaten out of us politically on issue after issue. It’s also wrong.
Progressives, act like we’re going to be in power again. We are right because we’re good. And our goodness isn’t dependent on it being reciprocated. I’m not advocating for being soft against Trump, but I am saying that if the President nominates someone who is qualified and ethical, Senate Democrats should still meet with the nominee and refrain from trying to prevent a duly elected (until federal and state prosecutors tell us otherwise) president from exercising his right as President. Sure, if he nominates Dennis Rodman, Rudy Giuliani, or Omarosa, we should absolutely block that kind of monkey business until the cows come home. But if he nominates essentially the same kind of judge any Republican president would have in the same position, don’t overreach out of retaliation and pull the same stunt Senator Mitch McConnell and Senate Republicans did in 2016 against President Barack Obama. You dont have to vote for the nominee – and I might even suggest that if the nominee is clearly going to be hostile to things like women’s health, civil rights, and money in elections that we organize to defeat the nomination – but we’re not the Republicans. Senate Democrats: let a qualified Supreme Court nominee come before the judicial committee and allow them to be voted on. Be better.
Elections have consequences. We progressives were appalled at how the GOP treated President Obama during his tenure. Our president had not only been duly elected – twice – but he had been elected with sweeping majorities in both elections, clearly cementing the American people’s willingness to trust his judgment for the full 8 years of his two terms. The Constitution explicitly gives the president the right to nominate a Supreme Court Justice in the event of a vacancy during their term. How dare the GOP deny our president his sacred right as chief executive of the federal government. But we were appalled because they, Congressional Republicans, were violating the rules. They disregarded the constitution. They compromised their ethics and morals for a political win. The answer, our collective progressive response, can’t be to simply say “Screw it, there are no rules anymore.” We can’t accommodate the degradation of our constitutional system simply because the other side cheats. We are and we must be better.
Major League Baseball Hall of Famer Jackie Robinson, the first African-American to play in the MLB, understood that while it would have felt really good to turn around one game and give one of those racist fans calling him a nigger a piece of his mind, it also would have set back black players’ opportunity to play in the MLB years, if not halted the momentum all together. Catharsis feels good for an audience of one; restraint and sticking to one’s stated values is harder, but benefits the whole long-term.
The same is true in the case of the recent Supreme Court vacancy. Civility and doing what’s right didn’t suddenly go out of style because a bully got a win. We can’t justify employing the same tactics that we find deplorable simply because those tactics beat us. That would be like a 12-0 football team changing it’s entire playing philosophy after a close loss to a team that played with 12 men on the field. We know that we’re right. And even if that means we have to work harder, be more strategic, be held to a higher standard of scrutiny, isn’t what we claim we’re trying to accomplish in the end worth that? If we respond in-kind to every norm violation the other side commits, we are being complicit in the very denigration of the democracy we say we are committed to saving.
Progressives, stay true to what we know is right, play smarter, and be prepared to set the right example when we take back power. What the Republicans did in 2016 was wrong. It was wrong then and it’s wrong now. Let’s not perpetuate a false precedent. We can either set an example or get pulled into the mud with the Republicans.
Senate Dems, be better.