Supreme Court Justice Ruth Bader Ginsburg, legal titan and pioneering advocate for women’s rights, died last Friday due to complications of metastatic pancreas cancer. She was 87.
Her death — less than seven weeks before Election Day — has kicked off a brutal political battle over the future of the court. Just one day after Ginsburg passed, Senate Majority Leader Mitch McConnell (R) vowed to desecrate her not-yet-cold Supreme Court seat by ensuring the Senate will vote on President Trump’s nominee to replace her. This decision has been lambasted by all those that remember the contentious, blocked nomination of Merrick Garland following the death of Justice Antonin Scalia.
Back in 2016, McConnell refused to hold a hearing or vote on Garland’s nomination because it was made during the last year of Obama’s presidency in order to give the American people “a voice in the selection of their next Supreme Court Justice,” a completely unprecedented and incoherent line of reasoning that only served to cover up thinly-veiled and malicious partisanship on the part of the Republican majority. Those that believe recalling this moment in political history and the hypocrisy Republicans are exuding by completely switching-up their reasoning will change anything are making a fatal error made time and time again by Democrats.
Republicans will utilize their political power to the fullest extent, regardless of whatever the norms, rules or even their own promises in the past may suggest.
Republicans didn’t block Merrick Garland’s nomination because of some deep, moral question about the righteousness of a president appointing a Supreme Court Justice towards the end of their term. It was about Republicans getting a conservative Supreme Court Justice — which worked. As summarized by conservative political pundit Matt Walsh, “We didn’t want Obama’s pick and Republicans had the power to prevent it, so we wanted that power to be used … Stop being scared of playing the cards you’re holding.”
The lesson to be learned here is this: the Republicans are right. They are right in one specific way: Republicans know how to wield political power. This Supreme Court seat is crucial to the direction of the High Court — if a conservative Justice is appointed, there will be a 6-3 conservative majority for decades. A conservative majority can comfortably overturn many of the fragile cases that uphold certain rights, including reproductive rights, voting rights, immigrants’ rights, the healthcare for millions of vulnerable Americans, to name a few issues. Republicans and Democrats both recognize this, but only Republicans have the veracity to carve conservative jurisprudence into our legal canon, no matter the means. Unlike Democrats, Republicans recognize that there is no reward for forbearance in this moment, or at any opportunity.
This mentality has proven effective in many aspects in our political system; a blatant example of this is gerrymandering. Gerrymandering is not an exercise of forbearance — political parties are able to use their power to manipulate the lines of district borders to maximize the power of their party. Republicans are very good at gerrymandering. Four times as many states have Republican-skewed House or Assembly districts than Democratic ones. This allows Republicans to hold onto political power despite not being very good at winning elections.
In the last seven presidential elections, Republicans have only been able to win the popular vote once. Despite this, Republicans exert significant influence on other political bodies. Of the five conservative Supreme Court justices, four were nominated by presidents who had lost the popular vote.
With a mentality of forbearance, Democrats cede power for nothing other than to pursue a thin veneer of perceived moral superiority. While Democrats are confined within their self-imposed bubble of proper political etiquette, Republicans haven’t been playing by the rules for years. It wasn’t until McConnell became Minority Leader in 2007 when the normalization of a political procedure — the filibuster — made supermajority requirements to get legislation passed into an expectation rather than an exception. Republicans wielded their power to impose a conservative agenda on Democrats, rather than compromise with them.
Former Speaker of the House Newt Gingrich (R) paved the way for many of these aggressive tactics. Gingrich abolished the Office of Technology Assessment, an organization responsible for providing Congress with unbiased reports on a wide range of issues concerning science and technology. Although this action was explained away as a cost-saving measure, it was a way for Gingrich to centralize power in the speaker’s office while sending the message that ideological commitments will trump evidence.
Even if Democrats don’t pursue these self-serving political tactics, it does not stop Republicans from accusing them of such aggression. Republicans have repeatedly criticized Democrats of secrecy and extraordinary procedural maneuvers to pass the Affordable Care Act, when in fact, Obamacare is likely the most scrutinized major legislation in U.S. history. The Affordable Care Act spent 25 consecutive legislative days on the floor, making it the second longest consecutive session in Senate history.
This delusion Democrats hold that Republicans will somehow be impressed by the moral restrictions they impose on themselves needs to stop. The concern that if Democrats play these aggressive political games then bad behavior on the other side will be normalized is misplaced. Republicans will continue to be politically strategic whether or not Democrats engage as well. In the words of Dahlia Lithwick, a legal and political writer at Slate Magazine, “It’s no longer that when they go low, we get to go high. [Republicans] are permanently living underground.” Good faith and unilateral disarmament of these political strategies is a luxury that is not feasible in our system.
The ensuing political battle over who will replace Justice Ginsburg is only the most recent outcome of effective Republican political maneuvering. Going forward, Democrats need to become effective political strategists if they ever want to be on a level playing field with Republicans. Without this change in strategy, a generation of conservative dominance over our legal and political systems is inevitable.
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