This is all "Pie in the sky" Mr. Tomasky fails to mention the Democrats running for the senate between the coasts will be under intense pressure to vote for the nominee. In my state of Indiana, senator Donnelly has a slim chance to be being re-elected in a very conservative state given that he is running against a strong Republican candidate, unlike the flawed candidacy of Richard Mourdock 2012. A vote against this nominee will ensure his defeat in Indiana. The candidates in West Virginia, Missouri, North Dakota and Montana will face similar pressures. Perhaps if the Democrats would remember that the country doesn't end at New York's western or California's eastern borders and address the issues of middle America without labeling them as deplorable's, racists and anti LGBT, and all the other derogatory names they use to describe hard working middle Americans, they might start to win elections. If you want your agenda passed win elections. Its really that simple!
The only reason the Court matters so much to Democrats is because they have used it to achieve policy aims that they cannot achieve at the ballot box. That is disgusting. Democracy means that the majority makes policy. It does not mean that you get 5 justices to make policy when you fail to win elections.
3
The writer leaves out the role Harry Reid played in the years leading up to the election in 2016. He was the consummate bare knuckle politician. He had no compunctions about lying about Mitt Romney’s taxes or bringing about the so-called “nuclear option, of dispensing with the filibuster for all judicial appointments, even though he was warned that being in the majority with a Democratic President was not guaranteed. His answer was to call for the Democrats to go for no filibuster for Supreme Court appointments once President Clinton was in office and she had a Democratic Senate. McConnell took his advice on that, and here we are. As for the Garland appointment, McConnell placed a bet that he won. He could have lost, but no one expected Trump to win. It all comes down to a presumptuouness that may cost the Democrats the Court and Congress for a generation. Don’t blame the Republicans for sitting down to play Texas Hold ‘em after that Las Vegas card sharp Harry R. shuffled the deck. Winners smile and smile. Losers cry, “Deal! Deal!”
2
Not won, stolen. Not unlike Bush 2 and Trump. The GOP (there is no difference between the extremist/christianist wing and the party) has been waging a war on the Constitution since the 50s. The Dems engaged unions, black voters, etc at the convenience of the party all the while keeping business and the financial industry happy. So here we are
2
The right didn't "win" the court, they stole it.
5
Yes, there will be more cake rulings and abortion will go back to the states. Women & gays living in the Bible Belt will suffer, but that’s the way a large majority of the people who live there want it. They have been making that clear at every chance they’ve gotten for more than fifty years. How fair is it for NY & CA to decide social issues for Texans?
1
This article....is why people look at the Democratic Party and scratch their heads: Do you people live in an echo chamber and deliberatly filter out the achievments of the Trump Administration...and incite your base by making baseless claims that a conservative leaning Supreme Court appointment will result in the wholesaler reversal of a laundry list of civil rights is ridiculous scare mongering. There is no fact that would back up that assertion.
1
A great read. Thank you. Schumer is hopeless and should be replaced. That McConnell is motivated 100% by malice and 0% by any commitment to American democracy is by now obvious to all. He'll bring the nation down out of sheer spite. He does not give two figs for the constitution. Trump would sell the nation outright to Russia for two scoops of ice cream. Your most important advice is to keep fighting and not assume anything. "Now is the time when all good (wo)men must come to the aid of their country" etc.
2
when McConnell blocked Obama's nominee, Democrats should have stopped the Senate business, people should have poured to the streets in millions, shutting down the country.
5
More fake news and fake legal reasoning. Tomasky pins part if his hope on Mueller accusing Trump of obstruction of Justice. I thought the investigation was supposed to be about collusion. Hmm - accusing Trump of obstruction for firing Comey after the IG's report would be a joke.
2
At every critical moment, Chuck Schumer has played Charlie Brown to Lucy's (read republicans) snatching the ball away.
He and Nancy Pelosi (the very mention of her name is like criptonite) just don't seem to have the metal to forcefully push back against a ruthless foe who doesn't play by the rules and for whom the word civility is a joke.
Chuck, Nancy, thanks for your service, but it's time to take a bow. Either lead, follow (someone who will) or get out of the way.
2
Once the republicans get their Supreme Court justice, Trump may well lose his support. The republicans are keeping him in office right now in large part for this purpose. He may be canny enough to see this and stall on the nomination because he may be aware that once in, his republican support may vanish.
5
Because he believed that Hillary Clinton would win the election of 2016, President Obama made a crucial mistake: when the Republicans refused to even consider his nomination of Merrick Garland for the Supreme Court, Mr. Obama could have gone to the Supreme Court and asked for a decision. Clearly the Constitution was on his side and Mitch McConnell would have been forced to consider Judge Garland.
So why didn't Mr. Obama do that? I believe it is because he knew that after Hillary Clinton was elected, she would pick someone who was not only more liberal than Mr. Garland, but also younger. But I don't blame President Obama. After all, how could he know that Trump could possibly win?
5
The Democrats cannot afford to wait until November. They must now go forth, taking to the streets, just like in the Viet Nam era. It helped put an end to the Viet Nam war. Maybe it will help now to put an end to the Trump era.
We owe it to our grandchildren and their children.
Perhaps the NYT can write a column outlining how the Senate can be censured and to force McConnell to step down as the Majority Leader.
Please help us. Before November. It might be too late then.
7
Dem voters who voted third party or stayed home brought us trump. That’s another part of how the Dems misplayed what should have been a winning hand. Dems must realize They Must All Vote and they must all vote for ONE candidate. Or they will keep losing. As long as our system is designed for two parties, which it still will be this fall. It’s math. Easy math.
13
This column rates an "incomplete." The timing of Kennedy's departure is not an accident. He and trump made a deal. He voted with the right wing on a host of cases where a centrist would have swung to the left-- at least on some of them. His son is so far in with the trumps that there is no question of conflict of interest. So Kennedy agreed to go NOW, while there still exists an opportunity for the GOP to roll in a right wing justice, on the young side of course-- before the big expose of trump that is hopefully coming, and before the mid-term elections which may change the balance of both houses just a bit. Any justice this gang appoints will surely agree in advance to either kill the Mueller investigation or pardon all of them. The dems are such weaklings, they won't do what needs to be done, which is hold a hearing where they subpoena both generations of Kennedys, plus the trump team mates who took the loans, and submit them to the style of questioning the GOP ran Rosenstein through last week. Come on DiFi, go down swinging. Expose the corruption. The fact is, the SCOTUS cannot hold a whiff of corruption during an administration this corrupt, and survive as an institution. Does anyone in DC care about legacy, about honoring the greats like Marshall, Warren, Marbury, Brandeis? Look at that building in the photo--- do we want to see it crumble like the greek ruins after which it was modeled? I for one am not ready for that fate.
18
Win in 2018 and 2020, pack the court to 11, and take back the stolen seat. It's the only realistic option.
18
LIfetime appointments to the Supreme Court was one of the many mistakes the founders made.
10
adding supreme court seats, adding new states to the union -- great ideas but there's easier things to do once Dems get the majority:
Fund vote-by-mail in every state (you can't tell them how to run elections, but you can provide generous funds to lead all states to do it the right way)- this stops R's ability to suppress voting with ID nonsense and closing selected voting locations. Fund automatic registration for citizens when they interact with the government.
Pass a law that all redistricting be done by neutral citizen commissions, as a dozen states already do.
Pass these with a one-vote majority if you have to -- assuming we get the White House back as well. Be ready to do this stuff on day one.
10
Women need to tell meddling men and the other women who want to restrict access to abortion that we don't need or want your permission. If abortion is restricted women will to figure out how to offer one another safe abortions through an underground system.
3
If the Democrats somehow stall the Supreme Court nomination until November and win 51 Senate seats, that still leaves two months for a lame duck Senate to approve someone Trump nominates. This is a meaningless effort. If the Republicans were smart, they would sit on this and pretend to be vetting candidates until after the midterms, so all those people who voted for Trump because of SCOTUS will do so for Republican senators this time.
Let the Republicans stack the Supreme Court. The Supreme Court does not rule on impeachment. Gun control has never gotten anywhere and is mostly cosmetic in a country with one gun per person in circulation. Ireland just overturned its abortion ban which suggests one will not get very far here. The ship has sailed on unions long ago.
Once the Republicans cannot nominate any more justices, it will be plain for the world to see that the administration is little more than a cesspool of corruption that demonstrates incompetence at every turn. The Republican Congress will be seen as little more than its enablers. Botched hurricane responses that kill thousands, implementing policies with zero preparations for their consequences, and schmoozing with dictators do not make for good campaign ads.
Give them the SCOTUS, and they will be exposed by 2020.
2
It would seem to me the first order of business is to win elections. Obama’s presidency was an abject failure as Ds lost an enormous number of seats nationwide. Prospectively Ds should follow leads of Mike Bloomberg and Tony James. Pro growth policies top to bottom. Eliminating ICE and free health care won’t do it.
2
I'm not voting for any corporate democrat. I'll use single-payer as a litmus test. If they don't strongly support that, I won't support them.
I realize the supreme court is at stake. But I can't stand these week Chuck Schumer-types. I'm DONE with ever voting for another one again.
The NYTimes is at fault, as well, for not writing fairly about Bernie and barely covering Ocasio-Cortez at all until after she had won.
3
Good piece...for more evidence of Obama's and the Dems' naîveté, fecklessness and miscalculation re the Garland nomination see New York Mag's By Eric Levitz' "In Hindsight, Democrats Really Mishandled That Merrick Garland Thing"...one concludes from it that the collective Dem delusion regarding the possibility of cooperating with and moderating an uncompromising Republican party must be abandoned if we're ever going to halt and reverse the dispiriting, anti-democratic direction of the country ....
8
The right has outplayed the left in this country - we liberals brought a Roberts Rules of Order to a gun fight. But by outplaying us the minority right has taken the reins of power and now controls the government.
They lied and continue to lie, they will likely avoid the legal punishments that they deserve - but one day all will be exposed. Then their dynasty will crumble.
Their controlling-yet-minority party of zealots (led by a madman without the wit to be an honest demagog) seems bent on imposing their religious fanaticism, their nonsensical immigration rules, and their dangerous health and environmental (non-)regulations on the entire population. Rules about which a solid majority of us are strongly, morally opposed.
That can't end well.
Why would anyone want to impose their rule on a majority population who opposes them? It only makes sense if the rulers are fanatics, despots, autocrats, dictators, or narcissistic madmen. History shows us how revolution awaits those who refuse to learn about and from past experiences. Revolution awaits. I spend a lot of my time humming "The Song of Angry Men" these days.
3
Many are to blame for this fiasco. First liberals need to acknowledge that this is a fiasco: only 18% of Americans think abortion is unacceptable under any circumstances. 67% of Americans approve of gay marriage (see Gallup). Yet the new SC might vote against these very strong trends. It is tempting to blame the Democrats, and they do have some responsibility, but so do the non-voters who thought Trump would never get elected and pinched their nose at HRC. Republicans have no such qualms: extreme right religious leaders all supported Trump very clearly. Republicans are not afraid to play hard and sometime dirty, and this is the result. Know your enemy and know yourself.
3
Dem congresspeople aren't just going to be given a blue wave majority on a silver platter. They need to earn it by showing they have the stomach to play hardball with this nomination. If they can't close ranks and stick it to Republicans now, how can we depend on them to stand up to Trump when impeachment hearings start?
3
A screaming battle might persuade more Dems to vote, and it might also persuade the billionaire owners of the GOP to spend even more on disinformation, fake news, lies, and innuendo. Will screams from Dems carry more weight than the bilious billionaire propaganda machine??
The only alternative to screams is a steady convincing pursuit of real programs to address the nation’s ills: lack of affordable housing, lack of living wages, lack of child & elder care, opioid addiction, failing transportation systems, ... Can the Dems present candidates with conviction and charisma, or are voters forced to choose between milquetoasts and charlatans??
10
Democrats and Republicans who care about the United States remaining a Constitutional Republic and a free democratic state must push back resolutely against Trump's pick.
With med-term elections in but months, we must wait until the people have spoken.
Trump has openly come out supporting Russia and North Korea over America's closest allies.
He meets with both their leaders in secret discussions without any Americans present for a reason.
If the Special Prosecutor finds damning evidence about his massive funding from Russian oligarchs through Deutsche Bank's wealth management group during the Crisis, he could use some mischief makers to invent a reason to assume extraordinary powers.
Putin came to office by starting the 1999 Russian Apartment fires and framing Chechnya, so he knows the drill well.
While Congress is still a co-equal branch of government, they should resolutely push back on Trump's choice until after the elections.
4
Democrats should also pressure R-Senators up in 2020. Those folks run state-wide, of course, so gerrymandered House districts are meaningless.
At least 4 or 5 of the 2020 R-Senators are not going to want to be seen as having enabled the denouement of Roe v Wade. After all, they'll be wrestling with Trump on the ticket, or Pence in the wake of Trump's impeachment, imprisonment or resignation.
1
if donald trump wanted to unite this country, he would nominate merrick garland. such a gesture would demonstrate his commitment to govern for us all, to represent us all, and not a narrow wedge group; the generosity of it would reduce the tensions and help us see a common way forward.
if only.
1
Trying to understand why half the country prefers Trump and the GOP in any form seems like the first essential step to take to move forward.
Democrats, like the GOP, are addicted to campaign contributions. Until we figure out how to kick that habit, I'm not seeing much daylight.
1
Why can't the other 49 senators ask lots and lots of obscure, time-consuming, lengthy questions?
Ask them what they ate for lunch in 1989, ask them about their ties to the Heritage Foundation, ask them what Leonard Leo (or anyone else at the Federalist Society) asked them when he was curating his list of reliably conservative justices. Ask them to provide the names of every one of their gardeners, nannies, house keepers, etc. that they have ever hired. Ask them for proof that work eligibility was confirmed and all employment taxes were paid.
It's not the norm but Tit for Tat is needed.
1
Can't Kennedy also retract his resignation? He is appointed for life, and his resignation letter announced he would leave at the end of the current SC term (end of July, I believe).
Democrats should lobby Kennedy to remain on for a couple of more months at least as aggressively as Trump and the Republicans lobbied him to resign before the elections.
The pitch would be that, after the Garland manipulation and withthe cloud hanging over Trump, the people should have some influence over who might replace him in this critical moment in the court and nation's history. Also that it would serve to remove the taint on his legacy of being seen as leaving for Republican partisan purposes.
2
If only the hopes in the article can indeed be realized. Re point #1, a Supreme Court crisis was absolutely a prominent concern and point of discussion during the 2016 election. Pending the appointee, generations to come will deal with potentially appalling consequences. The public will resist, but Democrats in congress must protest vigorously, unceasingly, and with impassioned speech. l fear such action will not be actualized.
As a conservative woman, this is wonderful news. This is something we have waited to happen for a long time and had just about given up hope.
We voted for Donald Trump because he promised during his campaign that he would appoint conservative Supreme Court justices and he is actually delivering. We had not been supported by past administrations so this is such a welcomed change. Happy days are here again and it feels so good.
2
Identity politics and full embrace of open-borders cost the Dems both the 2016 Congressional elections and the 2018 Presidential and Congressional election, and in turn that cost them the loss of a seat on the Supreme Court. Identity politics and open borders are not the same, but there is substantial overlap. The Dems need to re-think both, and instead focus on bread and butter issues such as taxes and consumer protection.
3
No doubt that Trump's pick for the Court will be the end of Roe v Wade and marriage equality. And certainly voting rights and voter registration will be threatened on all fronts with a soon to be extreme conservative court. And in addition to all of that minimum wage laws, Social Security, and the entire Fair Labor Standards Act from the New Deal era will be on the chopping block. Democrats need to talk about those items as well and not just the threat to Roe v Wade.
I am a lifelong small d democrat and, for a long time, a registered Democrats because I have never found anything appealing or principled about the modern Republican Party (and, since the advent of Trump, the GOP has gotten worse and worse).
I am quite old enough to know--not just to think--that I won't live to see things change as they must. However, I still believe that we have to keep working for change and believing that we are on the right side of history.
I have never understood why the Supreme Court has not always been the main point in elections, even when the court wasn't as politicized as it now.
1
Good riddance, Anthony Kennedy!
All the respect accorded by the bar and popular imagination was due entirely to him finding himself in the middle of an increasingly fractured court. Well, it will be fractured no longer.
Now that Kennedy's career is entirely in the rearview mirror, it seems fair on balance to characterize him as a weak-willed, intellectually feeble kind of clown, and perhaps, considering the timing of his retirement, a dupe (or complicit, considering that his son was Trump’s banker at Deutschebank).
Kennedy gave a few crumbs on affirmative action and gay rights, but he was wrong on issues core to democracy: he cast deciding votes destroying campaign finance regulation and removing the eye teeth from the Voting Rights Act, among others.
I'm not sympathetic to Kennedy's age or the pleadings of his wife. You take the top Court job and you sign on to higher priorities. Soldiers and cops die for their country every day. Where the fate of democracy is in the balance, it's not too much to ask the same of a Supreme Court justice. In fact, the timing of his retirement not only ensures a hard right successor, but will also juice Republican turnout in the mid-terms.
What a legacy.
Progressives have put way too much emphasis on top-down judicial process for way too long. Maybe now with Kennedy gone, scales will fall from eyes, and progressives will return to their roots of organizing the people and seeking change thru the legislature where it will be better rooted.
8
My oh my, talk about Monday morning quarterbacking; this is embarrassing, in fact it's difficult to read and not feel angry at the "woe is me", or "woe is us" refrain throughout.
Since November 2016, I've been beyond angry at how the Schumer Pelosi Party, using Hillary Clinton, led us to the slaughter, behaving as if it was all in the bag, what could go wrong, after the Obama reign, so full of themselves they gave no quarter to the last opportunity we will see for generations, that opportunity being Bernie Sanders, a gentleman who epitomized what America used to be all about.
See, I'm convinced beyond any doubt, going on two years into this Trumpian nightmare, that they, the GOP, the Republican Party, have had a silent partner these last 40 plus years, that partner, actually partners, being the monied elites who are the heart and soul of the anything but Democratic Party, the Schumers, the Pelosis, the Clinton Gang, their Wall street big money backers, their Big Pharma, and of course Big Insurance partners.
Together, this political/corporate behemoth has been engaged in a far-reaching decades long program of managing the perception of the people, with such subtlety that most have no idea their thinking has not being their own for nearly a generation, which is just about the period of time entrenched power needs to effect real control of a population, or more specifically the electorate.
The Supreme Court has arrived where it is today, because of our one party system.
5
Here's a prediction for you: Clarence Thomas is finally going to write the majority opinion ending race-based preferences by government actors, and then he's going to retire. And his replacement will cement the 5-conservative majority for another 12-15 years, making the next few Presidential terms irrelevant for the Court.
3
Souter only seems liberal because of the vast rightward shift the country has taken.
1
Unfortunately, the Democrats are far better at forming circular firing squads than they are at facing the real foe, which is an increasingly conservative, reactionary political opponent bent on undoing a half century of social progress. We proved that in 2016, when a lethargic Democratic base did not turn out in force to elect Hillary Clinton. I'm not sure we will get our act together this November either.
A further suggestion: pare down the list of hot button issues likely to alienate moderate and conservative Democrats. The D's have become a two-coast party and that has to be reversed.
9
Coastal dem here, and Khal you are 100% correct. Core issues like social security forever, and great public schools could be the glue that bind us together.
6
Perhaps the Constitutionalist have won the Supreme Court. Now what? We follow the Constitution as it was intended to be understood, or at least move closer to that.
Our Constitution is not progressive and packing the courts to misinterpret it to have a progressive meaning is a corrupt path.
7
The Democratic leadership seems not to realize that the comfortable upper middle class spaces they inhabit are not where most Americans live. I think Chuck Schumer and Nancy Pelosi are fine people, but they seem remarkably complacent, as if they believe that the pleasant status quo they experience in their own lives is what everyone else experiences too.
But when most people in America live paycheck to paycheck (or without a paycheck at all) and are always just one step away from financial ruin, the Democrats need leadership that is far less placid and far more energetic than what they've currently got. It's not just the Supreme Court we are losing.
6
"I think Chuck Schumer and Nancy Pelosi are fine people, but they seem remarkably complacent".
Do you know who else thinks they are not just "fine" people, and actually believe them to be the greatest gift ever, a gift that keeps on giving.
Want a couple of hints ??
One group has really, really, nice offices on Wall Street, with international affiliates in the City of London, and other European financial centers.
Another group has some of the most lucrative government pharmaceutical contracts imaginable, in fact Alice in Wonderland type contracts.
Still another really socially conscious group, administers most government medical insurance programs, no bid deals naturally !!
Really "fine", caring people, those Schumer Pelosi types ...
I agree that people should pay attention to Supreme Court appointments and that that means paying attention to elections. I also believe that people should read Supreme Court opinions--especially on different sides of cases. It makes people smarter, deeper, and more informed when they do. It also exposes them to the parts of law that transcend politics--and that is an ennobling and democratizing experience that can only be understood when one undergoes it.
I have to disagree, though, about the relevance of the opening anecdote about Marshall and Thomas. One cannot simply isolate and remove a historical fact from its context, plug another one, and make anything like supportable claims about an alternate history. It might be an entertaining way to start an opinion piece, but it is a misrepresentation. One change sets thousands of others in motion, and that effect magnifies over time. We know this. We can observe it.
No one can observe what WOULD have happened if. No one knows what cases will come before Gorsuch 20 years from now or how he will decide them.
The whole exercise is speculative fiction, Intellectually entertaining--but it has nothing to do with history. All we really know is that we will be largely surprised about what actually comes to pass.
3
Everything about this column made me happy. Thanks, Mr. Tomasky, for pointing out all the good things that a conservative majority on the Court might do.
5
I have another plan for Democrats. How about rallying the troops for threatening to explicitly pack the court when they return to power.
It is clear that the Supreme Court is no longer a respectable institution if it can be stacked ideologically by extreme appointments. Let’s just acknowledge this and have plan to reverse the damage ASAP.
Offer the Republicans a choice: either play fair and select a justice who will be reasonable and respect prior rulings, or push the envelop. If the latter, let them know that we will pack the court when we have the opportunity. Perhaps that threat, and the destructive implications of it for the legitimacy of the Court will make them back off.
2
And when the Democrats lose the next go round, what happens then? 15 members on the Court? Court-packing is like eliminating the filibuster: it seems clever until you lose the majority and the other side uses it against you.
If Trump is having rallies and getting air time then why in god's name aren't the Democrats.Shelve Schumer and Pelosi and yes even Bernie and get some young up and comers and Biden to hold rallies in those states where they only lost by 77.000 in 2016 or even in states where they lost. Passion begets passion. Forget about smart little dinner parties or exclusive cocktail party events. Don't count on Trump or Mueller to be the motivators. Election mode is 24/7 365 days per year every year.
9
We are so accustomed to framing this as a conflict over who sits on the Supreme Court, as if to say that the determination of what sort of society we live in is somehow dependent on finding five Justices who are ready and able to find the expression of our values in a document which is for the most part over 200 years old.
Why does this make any kind of sense? The one thing the Founders and the authors of most amendments to the Constitution have in common is that they are all dead and gone.
This is our country now, our values are at stake, and in the case of a number of the more egregious decisions to come out of the Court this term, a considerable majority of Americans disagree with what the Court has said.
I suggest we start formulating a new Bill of Rights to be appended to the Constitution, such that any Court, regardless of its composition, will be forced to accept the right to privacy, right to contraception and abortion, full citizenship rights to individuals but not limited liability corporations, equal protection regardless of sexual orientation, the right to access to health care, and so on.
Is this simple? No. Is it obvious how to muster support for such a program? No.
But is it better than conceding our social norms to a small but well-funded minority for generations to come? Yes it is.
It should be our goal to put the values of a modern society into the Constitution and thereafter beyond dispute.
3
It's not a novel idea. Former Justice John Paul Stevens proposed six amendments of his own, including one regarding campaign finance reform.
3
The Constitution provides a mechanism for doing that and it is a mechanism that we have used 17 times. That said it requires a substantial amount of consensus and many of the issues which you just listed do not have that level of consensus
3
@Steve - I cheerfully yield precedence on this suggestion to Justice Stevens. But whereas it may have seemed either superfluous or radical when he made it, the events of the week have shown it to be vitally necessary.
I would suggest that if the Democratic Party got behind it though, it might offer many people who don't tend to vote a chance to cast one that could really make a difference. The support is out there, we have to mobilize it.
1
What we need is mandatory voting. But short of that, every general election should be a national or state holiday with all businesses shut down (except gas stations) and lots of hoopla like our Fourth of July celebrations in every town in the nation. Signs posted everywhere, banners and flags waving, high school bands parading down main street, rallies in parks, music and food. Voting is the foundation of our democracy and too few are doing their patriotic duty. When only a small, passionate percentage vote regularly, it is more likely that extreme candidates on both sides will win and govern. I believe that the Democratic Party still represents the economic interests of the non-rich working majority, their aspirations for a better life for their children, and fundamental fairness, equality and the common good. When Democrats vote, Democrats can win almost anywhere and appoint like-minded judges to the courts to protect the progress we have made.
5
My concern is that Trump will make a deal with his nominee, prior to that person becoming the nominee, that will guarantee that Trump is not indicted, even if Robert Mueller finds evidence of wrong doing. This is why he should not be allowed to nominate a justice, at least not now.
12
If the Mueller investigation results in action by the Supreme Court involving the President, wouldn't any Justices appointed by that President have to recuse themselves?
7
Nope. Breyer did not recuse himself in Jones v. Clinton.
Not saying anything new here, but Congress and the Democrats should not define themselves through a power struggle, but by supporting quality decisions to improve American quality of life.
Democrats need to recall, recover and represent the values of the voters they pretend to be speaking for. They have gone off the rails by pandering to special interests, not addressing the needs of the majority of Americans. That has led to their image as elitist. Nothing new here.
4
If you stand back a few paces and look at the overall composition of the country, the fact is that old white males pretty much run things in this country.
Sucessfully aided by bottomless pockets full of (domestic and foreign) money and all sorts of legalesed excuses to allow its infiltration into the political process, a clear minority governs this nation, from statehouses and governorships to Congress and the presidency itself. We have our very own oligarchy now, it appears, of about 100-125 hyper-wealthy family names.
This nation is is need of a full-throated reform movement if it is to survive as a popular, self-governing entity.
8
This is the outcome of democrats not uniting and voting for Hillary. The lefts call the rights low brain but with results like this, the right was smarter.
5
This would require an organized political party and since the Democrats can't seem to get themselves together, this will not happen, much as we would all like it to.
13
The analogy between the resignations of Anthony Kennedy and Thurgood Marshall is an apt one. The author is right: Had the late Justice Marshall postponed his resignation for some more time, “Clarence Thomas would never have been on the court.” Who can forget the way he played the race card during the Senate confirmation hearing to intimidate some Democrats into voting for his confirmation?
Justice Kennedy's unexpected resignation has given President Trump an opportunity to name a replacement who will help him take the country back to pre-Roe v. Wade days. Senate majority leader Mitch McConnell's will start the Senate confirmation proceedings on the nominee right away.
He couldn't care less that he refused to consider the Obama nominee to fill the vacancy caused by Antonin Scalia' death, reasoning that the 2016 presidential election was only a few months away and that it should be the prerogative of the next president to name someone to a job of that importance. Senate minority leader Chuck Schumer may say that the same reasoning be followed this time also and that the Senate proceedings on the Kennedy replace me delayed until the end of the mid-term election, which is only four months away. We can bet that the demand will be rejected.
The only hope in such an eventuality is of a few progressive-minded Republican senators switching sides and voting their conscience when the nomination is put the final vote. Are there enough Republican senators with spine who will do it?
4
Thank god somebody realizes the importance of FIGHTING for the Supreme Court, which means, in fact, fighting for JUSTICE for Americans instead of the Gilded Age injustices that the right-wing majority hope to heap upon us all for the next 30 years.
5
Mr. Tomasky, you’re in the right church but the wrong pew.
Obama should have nominated an African-American to SCOTUS, not Garland, and not a Latino. If McConnell refused to give a black nominee a hearing (which I believe he might have been too afraid to do) black voters would have come to the polls in far greater numbers than they actually did in 2016. They carried Obama into the White House and they would have carried Clinton into the WH as well, based on their fury at the Senate denying a black SCOTUS nominee a hearing.
Furthermore, even if McConnell had had the temerity to refuse to hold hearings on a black nominee, Obama should have taken the position that the Senate had waived its constitutional right to Advise and Consent, and he should have asserted that under those extraordinary circumstances, his nominee was entitled to be seated on SCOTUS. He certainly had nothing to lose by doing so, and there are strong legal arguments supporting such a position.
Obama thought Garland was a no-brainer because the Republicans has told him Garland would be an acceptable nominee. He fell for that lie just like he fell for the Republicans’ s repeated lies that if the Democrats would only tweak the ACA a bit more here and there, a few of them would support the bill.
If the Democrats don’t follow a take-no-prisoners approach to whomever Trump nominates, then we need to replace them in November.
14
There is absolutely not "a strong legal argument" supporting that position. The Constitution does not provide any right to a hearing; it requires the "consent" of the Senate for someone to be appointed. In the early days of the Republic, there were no hearings; just a discussion with the Senate leadership about whether a nominee would be supported or not.
3
Mariano-Florentino Cuéllar might have inspired more passion than Merrick Garland, but that is precisely why President Obama was correct to nominate the latter.
The younger judge could have spoken more to Democrats, but that would not have changed the numerical reality they were up against. Moreover, Republicans would have said the choice was too much of a liberal ideologue.
No one even made such a claim about Garland. Obama was smart to have opted for a centrist individual with stellar credentials. The fact that Garland was treated so shabbily unmasked the naked cynical partisan maneuverings from Republicans.
3
NM, by the time Obama was in his last year, and after all he had gone through with McConnell, Ryan and the rest of the mess we call Republicans-- he should have been wise to their charade of governing. I agree with a previous poster: he should have nominated a black jurist and fought the brutal fight and taken his case to the American people. And then if denied, the dems would have had a major leverage point to get out the voters.
It is too little too late. The coldest color is blue.
2
If Justice Kennedy sold his soul -- for eternal fame -- to the Trumps, this will be his legacy: His name will be "Mudd." Historians, get out your pens!
5
This is for the trump voters; rights are things we can use or just not use if our ethics or morals or values do not condone them. You don't believe that abortion is right? Don't have one and encourage all people around you not to have one.
You are gay and don't believe in "gay marriage?" Don't get married to the one you love.
You don't believe in paying for union representation? Get a job where there is no union, there are lots of minimum wage jobs without representation.
Be pure to your beliefs, just don't take rights from the rest of us.
12
Here's a clue. This liberal was well aware of what was at stake with the Presidential election for the Supreme Court. Very well aware, unlike the so-called progressives who were insisting that Hillary was no better than Trump.
Who, exactly, did the lefties voting for Stein or even Trump think that Hillary was going to pick for the Supreme Court? Steve Bannon? David Duke? Rush Limbaugh? Sean Hannity?
Or were they thinking about the Supreme Court at all?
And then there is good, OLD Chuck Schumer...leading a charge at the speed of molasses to fire up base of snowflakes who don't want anyone...and I mean anyone...to get upset. The end result will be a new justice that will make David Duke cheer...and maybe even bring a tear to his eyes.
Yeah...it's sad. Really sad. And the constitution will be treated as so much toilet paper by the new Supremely Fascist Court of these not so United States.
9
All of these arguments ignore basic math. Republicans can win with far fewer votes because the system is rigged so that their votes count more. The people in just 10 states, most conservative, control half the Senate. The last two Republican presidents lost the Electoral College. One person one vote isn’t in danger because it never existed in the first place.
11
This is why we have the electoral college. NY and California should not control our country. Do you know that at least 30% of the people living in NYC are illegal and the Gov and the mayor are trying to find ways to have them vote in local elections? With fake ID, they are also looking to vote for president. We must protect the country the Framers and our forefathers created.
Basic math would suggest that 10 states have exactly 20 Senators, which is far less than "half the Senate."
Democrats must do all of these. Those in Congress must press their more liberal Republican candidates to vote no on anyone whom Trump nominates.
Democrats in communities must press their Democratic (and vulnerable Republican) senators to vote no on any Trump nominee.
We must show Republicans that they cannot manipulate the Senate without compunction. We must stand up to Trump and his ilk. The downside is too awful to chance.
3
While democrats heads are exploding they should consider what they did to set off the politization of the court.... does the name Robert Bork ring a bell?
6
I once wrote a song to the tune of the TV series, "Mr. Ed." It goes like this:
"Oh, Bork is a dork of course, of course; and no one can talk to a dork of course..."
You can guess the rest. Bork flat out stated that he was an "Originalist" when it was apparent that he had clearly personal opinions and was not referring to a particular case. Anyone else any sense would have responded that they could not respond without having the particulars of a case before them.
5
Except that Robert Bork was never fit to sit on the Supreme Court
Yes, it looks as if the right has won, regarding the USSC. Yet history gives us hhope, as meek as it may be. One of FDR's disappointments is selecting a USSC Justice was Felix Frankfurter. Frankfurter was a card carrying Democrat, a supporter of the New Deal, and leader of a national fund raising effort to pay for the defense of Sacco and Vanzetti. But once on the Court, he proved to be very conservative, holding that the Court should not interfer with congressional laws. Thus, he was a conservatve in his understanding of the limited role of the Court. Then there was Eisenhower and Earl Warren. Warren was the former Attorney General and three-term governer of Califonia. By record and reputation, he was known as a hard nosed law and order kind of guy. But once on the USSC as Chief Justice, he became a devotee of civil rights and the rights of the accused. Indeed, in a post-presidential interview, Eisenhower noted that his appointment of Warren to the USSC was the biggest mistake he made in his eight-year presidency. Now, Frankfurter and Warren are anomalies, but this posting does suggest that the next "conservative" judge might turn out to be a Franfurter or Warren!
1
Manchin. McCaskill. Nelson. Tester. Baldwin. Heitkamp. Brown. Casey. Maybe even Kaine. All will vote for the nominee because they fear not doing so would be signing their political death warrant. Courage has left the building.
8
I wish Justice Kennedy would have held on until the November elections. Even if the Democrats capture the Senate, it will be too late. The effects of the Republican Senate putting in another conservative justice will have an effect lasting decades - far more injurious than a Democratic victory in 2018, which at best is only transitory. Trump-McConnel - what a pair. The worst president and Senate leader we ever had is re-shaping history for at least 2 generations.
2
Let's wait and see who the nominee is for the open position on the court before we start opposing or supporting him or her. Hopefully the President will nominate someone who is not "far to the right" and one that a majority of the Senate, including some Democrats can confirm. All arguments that the President should wait until after the election are superficial and will not have a bearing on the outcome. The nomination will be made soon and the Democrats in the Senate should work with the moderate Republican Senators to see that the nominee is someone they can support. The president will pick someone the Republican Senators, particularly the moderate ones, will support. He cannot afford to wait until after the fall elections-although it is possible the Republican majority in the Senate could increase after the fall elections.
2
He'll be choosing from a list that was put together for him by the far-right Federalist Society. The list is out there, look it up. There are no moderates on that list.
8
It's not over until it's over! Wait and see what happens. There's a one two punch coming, The Midterm Elections and Mueller's Evidence. And, if this lawless President dares to refuse justice, we will make the Women's March look like a neighborhood picnic- no matter who is sitting on the Supreme Court! Hang tough, America.
7
The Iron Heel is coming to give America back to those who deserve it - wealthy white men; if you're not in the club you don't matter, schlub.
5
>
The Dems have been rolled by the GOP at every turn. This is just another step toward rightwing totalitarianism.
I blame Bernie and his supporters, especially the ones that did NOT vote for HRC. As of late, they've been seen trying to cover their droppings, at least the ones that realized their folly, and the other fanatics are getting ready for a repeat performance.
For had Bernie NOT divided the party with his one note socialist dream, then gave lukewarm support for HRC and his minions that did NOT vote for HRC, the Dems would have picked 2, or possibly 4-5 SCOTUS justices. Now DJT has the chance to maybe replace Ginsberg, Breyer, refresh Thomas's chair too...... Game over.
If HRC won the DEMs would have controlled the court & courts well into the future. The camps aren't far away now
But no you're so smart and experienced in politics and we are just fools; please teach us!
This damage may very well be irreversible in anyone's lifetime read this post
Will thing get better, maybe, but things will get much worse first. Things got better in Germany, but not until the rightwing killed 60 million people
Let's for a second follow the Dem's & Bernie's optimistic version of the future: Whitelandia becomes smaller and minorities gain control of the voting booth
Do you really THINK Whitelandia is going to say: ok you win, you got us, take the controls?
Only an idiot believes that, the GOP is setting the stage right now to counter this coming demographic event
1
Vote or Die. Stop trump or Die. Stop the right-wing republicans or Die. Stop the christian extremists or Die. Stop the alt-right or Die. Stop McConnell or Die.
Your choice!
4
The biggest lesson Democrats should learn is that the mainstream media simply tells Democrats what they want to hear. All those shocked faces at the Javits center in Nov 2016 were the result of a candidate, party apparatus and liberal voters believing what they were told about the country over the prior 8 years on CNN, MSNBC, NYT and WAPO.
6
What now? No more abortion. Make that no more abortion for poor people living in red states.
7
Three lessons the Democrats need to embrace, right now, if they have any hope of pushing back....
* Collude with Russia (or perhaps another hostile State, as this one is taken)
* Lie through your teeth and then some
* Embrace hypocrisy
2
Democrats are suckers. They were suckered out of 2000 election, out of SCOTUS nominee, had nuclear option used against them and generally come across as naive in dealing with true nature of humans. Do such people deserve to rule, they can be suckered in trade polices (TPP) or sob stories by refugees or welfare queens. They generally give more importance to foreigners than locals. As I said, Democrats are suckers and cannot be allowed to rule until they wides up.
2
Why don't Democrats get their way? For one they don't even treat their own people fairly, looking at the way they sidelined Bernie and other progressives (with the help of the media). Then to reduce the number of potential supporters even more they labeled everyone who didn't pass some sort of liberal litmus test as ignorant racists. Due to the litmus test most of the counties in the US are unabashedly labeled as homes to ignorant racists, resulting in islands of Blue in a sea of Red even in Blue states. To top it off in spite of all of the pats on the back for being better educated and more rational they haven't changed their platform for over a decade, going instead from loss to loss. And they still rally around their leaders for bringing about their worst political position in a century.
The usual advice when you're in hole is to stop digging, but they can't put that shovel down. It's almost like some sort of cult instead of a viable political party.
6
Michael,
In 2016, everyone expected a massive Latino backlash to Trump’s flagrant anti-Latino race-baiting. According to the exit polls, it never came; the the share of the Latino vote for each party barely changed between 2008, 2012 and 2016. If the perfect cartoon villain couldn’t turn out the Latino vote, nothing would have—definitely not a Supreme Court nominee.
8
Blame Obama, blame Clinton, blame Schumer - at what point are the people of this country responsible for getting off their collective behinds and getting involved because its their responsibility?
Maybe it makes you feel better to know if they had only listened to you.... whatever, democracy is unforgiving no matter how much smarter you are than the people you elect. You all better figure that out now,
4
Now we watch the liberals writhe in pain while we roll back some silly previous rulings....that's what.
2
Under Obama:
Democrats: *proposes budget plan*
Republicans: No that's stupid, use this one instead!
Democrats: No, we won't
Republicans: Fine, then we'll shut down the government!
Democrats: you can't do that, you're evil, stupid, and hypocrites!
Republicans: *Shuts down government*
---
(Supreme Court Seat is vacant)
Democrats: hey, check out this guy, he looks pretty reasonable.
Republicans: no, wait for the election.
Democrats: No way, we're doing this guy!
Republicans: no
Republicans: *filibusters until Donald Trump.*
Under Trump:
Republicans: Hey, check out this budget plan!
Democrats: that's stupid looking
Republicans: But that's the one we're using!
Democrats: nope.
Republicans: you're all stupid, evil, and hypocrites!
Democrats: *Shuts down government*
Republicans now: Check out this supreme court vacancy, what do you think of our list of nominees?
Democrats now: he's stupid.
Republicans: which one?
Democrats: all of them.
Republicans: well, we'll get one of them in there, you'll see!
Democrats: *filibusters until next election*
Just to calm the recent rage: the world won't end when a conservative justice is put into office, plenty of the justices are going to kick off under the next president, and the cycle will go on until the end of time. The Founding Fathers were smart, they knew how to build a lasting Democracy. We'll all get through this as Americans.
6
To keep our eyes on the ball, let us assume that Trump gets no more USSC nominees before 2020, and Justices Ginsburg and Breyer are still on the Court at that time. Two things.
First, if the Democrats can get their act together, and capture both the White House and the Senate by then, Ginsburg and Breyer and could retire knowing that someone in their ideological mold will replace them.
Second, Justices Alito and Thomas are both pushing 70, and Justice Thomas in particular does not look to be in excellent health. If for some reason he were to depart the Court with the Democrats in control of the White House and Senate, he could be replaced by someone in Breyer's or RBG's mold.
Stated differently, assuming the Democrats play their cards well in coming years (e.g., with class-based appeals rather than the race and gender identity politics that alienate so many who would otherwise reject Trump), Democratic nominees could dominate the Court within three years.
Eyes on the Prize!
2
Democrats simply must wake up, vote in large numbers and focus on economic issues that will be good for all Americans who live somewhere other than the top 10%. They do not clearly articulate a simple message - they need to because contrary to politicians claiming voters are smart, they are indeed simple. It is also true that a majority of voters are not focused on the identity politics Democrats seem fixated on. We also have a system where the majority is seriously underrepresented because representation is seriously skewed to low population rural States.
4
The problem isn't with having a conservative majority on the Court. With an odd number, that's going to happen, as well as it would with a liberal one.
The problem, as I see it now, is that the conservatives are voting in a bloc with ideologies being the primary guide to their decisions. In short, the Court has become very predictable.
Unless he's in poor health (though maybe he just wants to stop and smell the roses), Justice Kennedy, knowing that he was a so-called "wild card" and what he'd be replaced with and how it would slant the Court even more, could have done the decent thing and stuck it out until after the elections. That he didn't and with the administration and Congress in place gives me a sinking feeling that something untoward is going on.
3
The son of Supreme Court Justice Anthony Kennedy was leading a real-estate division of Deutsche Bank as it gave President Donald Trump over $1 billion in loans to finance his real-estate projects when other banks wouldn't, The New York Times reported Thursday.
Because of Trump's inconsistent track record in business, which included multiple bankruptcy filings and frequent lawsuits, most other major banks would not lend to him. Deutsche Bank loaned Trump the funds to construct and renovate skyscrapers and other developments in New York City and Chicago, The Times reported.
https://www.nytimes.com/2018/06/28/us/politics/trump-anthony-kennedy-ret...
5
Democratic leadership must resign immediately.
They are owned by their donors and don't care if the working class is dying off.
5
Now is the time to vote....for everything! Such as: The right to be able to marry who you want, the right to be able to get paid what you need, the right to be able to not go to church but to love people, the right to be able to never injure anyone with a gun...to name a few.
2
Stop the conceal-America's-Internal-Enemy labeling. That's treasonous.
Who may have won the "Supreme Court" with Kennedy's retirement is The Oligarch-Corporations-1% Conspiracy, seizing America from The People. Figure out a label that shows their threat.
All over the New York Times we instead see labels that make it appear The People and their Internal Enemy are just two teams with different-colored jerseys: left-right, liberal-conservative, moderate. This labeling conceals the danger. That's treason.
1
I just read an excellent article by Wolf Biermann, the German protest singer, in this paper. He said it already in one of his songs: "Warte nicht auf bessre Zeiten".
https://www.youtube.com/watch?v=GSw5H4tY29A
1
Where is the Democratic leadership?
When Democrats lead they lead with their chin.
Pelosi can barely form full sentences anymore. Schumer is a zombie with a Wall Street anchor around his neck. Tom Perez ? Hello?
From Pelosi's own lips Democrats don't want change. Really?
Perez still spewing the "we lead with our values bill?
5
Now what? As I've repeatedly advised, if you have young children or are millennial....emigrate. Though I'm watching Gazette shooting on CNN so maybe affects my mood. What a country!!
2
I'm surprised to learn from Mr. Tomasky that the Latino vote was insufficiently energized before the election. What, "Build the wall, Mexico is sending us criminals and rapists" came after Trump won?
1
The Democrats deserve this. They ignored the people, when they shipped our factories overseas. The voted to kill our kids in the Middle East, in needless wars. I'm a Democrat. Next time, listen to the people.
2
For God's sake NYT's editorial board. Please get it right. The right didn't win anything, they stole it. Like they did everything else.
7
Do you honestly think that the 10's of millions of gun owners would ever let anyone tell them that they can't be armed????
If Hillary would have won and stacked the court then the SC over turned Heller and the states started the you have 30 days to get rid of your weapons... CIVIL WAR!
1
Not a word about RBG, who likely will depart the Court before Trump leaves office?
Gee, a "wise latino" after a "wise latina".; That would have worked wonders (not!). The "energized latino vote" is a nice what-if, but would it have mattered in the swing states?
Democrats fighting "to the bitter end" is about as futile as the "resistance" at this point. Of course, Jeff Flake may become a Democrat in his last months in office.
1
Trump may be as Christian as Larry Flint, but Obama is as Communist as Karl Marx. We prefer the first.
2
"And the sad truth is that apparently it will take these developments, or some of them, for liberals to see why they should care about the Supreme Court. "
Oh, please. You think liberals haven't cared about the Supreme Court? Who started the slime process now known as 'Borking'? Who pulled out all stops against Thomas? Hint: it wasn't conservatives.
No, the sad truth is that liberals care about the Supreme Court, very much so, but there are just more conservatives than liberals.
2
The last sentence is the key one. Democrats need to VOTE. Get the neo-fascists of the Trump-Putin Administration out of office, don't sit this out because Obama is not running.
4
We're so at odds with ourselves - red vs blue, rich vs poor, old vs young - that we might ask, Will this continue to be one nation?
Today we are warring tribes - tribes who hate each other and would just as soon spit on each other as breathe. Mutual respect? There is none!
If this keeps going, the country will fall - and I mean fall - into chaos.
Tomasky (and Trump) are 100% right about one thing . Hypnotized by his own sense of propriety, Obama took a 'no-stand' stand, opting for a distinctly disengaged, managerial, noble-looking, ineffectual bipartisanship. By abdicating his leadership role, by managing instead of leading, he handed the country over to someone who couldn't manage his way out of paper bag, but is, regrettably, a man who inspires, albeit from a dark, demagogic place.
Today the US government that is not about governing at all. It is about ruling. We should kick our government rulers from here to Sunday and back again, Only then should we play 'nice' (just like we did with Nazi Garmany and Imperial Japan).
2
I don’t get it — why do you think liberals don’t care about the supreme court? I’m seeing nothing but rants about it in my feed.
1
Now what????????
The plutocrats take over and the right wing cultural warriors get all their evangelical desires. The plutocrats get to own your soul unless you are independently wealthy. For reference read up on when J P Morgan's mob effectively ran the entire US economy because that is where this is going.
Would you like me to enumerate what we'll see. Start off with the complete destruction of worker's and consumer's rights. The environment, you have to be kidding. Public education is effectively a goner. How long before the get SS and Medicare?
6
Well done.
2
Another sad truth the author left out - trump is a far cry from George HW Bush.
2
Ah, so you concede the Court was previously leftist!
2
How pathetic are Democrats that they need extra motivation and object lessons to go the polls when their rights hang in the balance? How lazy is that? Republicans don't need halftime speeches to understand civics. That's why they're beating our brains in right now and for who knows how much longer.
4
The "Christian" conservatives mentioned weren't told by leaders how to vote. Your mis reading these folks.It was grass roots.
Feeling as if besieged by pirates they threw last hope's in a loud mouth braggert of questionable character but eager to take on the Clinton armada... and a miracle did happen.
3
If Trump's racist contempt of Hispanics, his ethnic cleansing through immigration hostility, repeated racial slurs and ripping nursing babies from their mothers and caging them like animals isn't enough to inflame the Hispanic American electorate, i doubt if Cuellar mistreated like Garland by McConnell would send them galloping to the polls.
If Mr. Tomasky thinks it's time for real harbball, spit it out and be specific.
Unfortunately this column is Monday morning quarterbacking on a Friday, a couch potato playbook Trump uses all the time.
Democrats don't need headlines. They need content. And some bare-knuckle bruisers to deliver it.
4
Roy Cohn is laughing from beyond the grave at how successful his most famous protégé is doing as President. Trump taunted, bullied, tweeted and lied his way through and over what used to be the GOP, using Cohn's playbook.
Decent American citizens of both parties need to toss out every Republican on both sides of the Capitol this November. If not, our future looks bleak.
Vote blue, no matter who!
3
Excellent. Thanks
1
and add President for life...
2
Tomasky is right on target. Commenters looking back to the past should smarten up.
1
Dear Evangelical,
I ask you about Hypotheticals and Hypocrisies.
You know a young girl, say twelve or thirteen. She recently started her menses. As she’s walking home from her friend’s house, a car pulls up next to her, grabs her, pulls her in, and drives away. The two guys in the car are the type of people you most despise...say, MS13’ers.
Yes, she is raped. Pure horror. It turns out after medical examination that she’s pregnant.
Without the right to an abortion, she would have to carry to term and be a mother.
This ghastly hypothetical puts ‘right to lifers’ in the position of being true to their principle or of being a hypocrite.
2
The fact that you openly admit that you supported Democrats nominating a Latino judge so his race could be cynically used as a means to energize "the Latino vote" is quite a big deal. I know it's extremely common nowadays for the left of center to weaponize race etc, but for the most part no one acknowledges it openly.
5
For all the millennials who like to blame the Baby Boomers for all their problems, they should have gotten off the sofa and voted!
7
too little too late...…...the dem's have no principles......they only want to get reelected so they can walk away into retirement and laugh at the citizens...……….
1
This is an excellent article, but you need a much better headline
Trump’s pick now will judge cases reaching the Court about him such as a self-pardon for crimes that Mueller might find especially about Russian collusion and obstruction of justice. *Just let that sink in.* Several Red state Democrats running for re-election will likely cave, just like they did for Gorsuch, so once the nomination hits the Senate, the person will be confirmed. *The only way to stop this train wreck* is for 2 GOP Senators to go “Independent caucusing with the Democrats” to flip control of the Senate to buy time to at least January. Schumer as Majority Leader would be 100% empowered to do what McConnell did in 2016. We need McCain, Flake, Corker, Collins, Murkowski to put country and democracy before party to save our nation from fascism.
4
When I heard the news about Justice Kennedy's immediate retirement I immediately became physically and violently ill. The retching, the headache and the chest pains went on for hours.
I knew Kennedy had become more conservative in these past few years, less a reliable balance vote and more of a thumb on the conservative scale, but to do this - to hand Republicans the coup de grace it represents? Reprehensible.
I am thankful for the voice Mr. Tomasky gives to hope - it still beats eternal, even in the face of the monumental GOP hypocrisy and intransigence.
We simply must turn a Republican - maybe Collins or Murkowski or Flake - not to vote for a liberal, but for a moderate judge in the Garland mode, to maintain the balance of the court for the good of us all. No good can come from a stacked court on either side.
It's time to quit appointing Justices for life. When the founders did that, life expectancy was 50 years. Now, Justices can serve that long. The policy would affect both liberal and conservative Justices and make the court more reflective of the decades in which it operates.
1
The Right Has "Won..." implies a fair fight. I'd argue the Right "Stole" the Supreme Court.
The risk is that the only thing Democrats will accomplish by going hard against the court nomination is to motivate republican voters even more. The real key is to stir up thier own voters. Or disbank the Party
1
Well, Obama's strategy in picking a centrist was only a bad one in retrospect. Few expected Senate Republicans simply to refuse to consider ANY candidate. If Obama had gone with the candidate Tomasky proposed, and lost, the blame would have been huge.
Thinks always look easy... through the Retrospectoscope.
4
I thought a great deal of Obama (despite his liberal leanings) because he was a pragmatist - not unlike our much maligned President Ronald Reagan - who is likely spinning in his grave over the antics of Donald J Trump!
Obama's greatest strengths were his intellect and his character. His greatest weakness was his naivety. He simply did not want to - nor know how to - play hardball in the political arena.
4
Hate to say it, but look what Obama's civility got us. Obama is probably the smartest and most decent president we’ve ever had, and he deserves great honor. But look how the Republicans respond to decency. Let’s learn our lesson. Let’s fight like we’re killing snakes and call out Republican deceit and treason at every opportunity.
8
Guess who isn't sitting around thinking about any of this? Mitch McConnell. The time for continued consideration is over. In fact, it got us where we are. This is a generational loss and if you can't see it, you're on bath salts.
It was a sad moment when the Democrats rolled over for the Republican denial of Obama's Constitutional right to nominate a Supreme Court Justice. Ergo Gorsuch- another right wing extremist to serve the ultra-right corporatist agenda.
Democrats must unite and hunker down for the battle for the survival of our democracy. No more Mr. Nice Guy.
6
Just wondering. Is there some reason you forgot to mention W in your list if the Court's abrogation of justice?
I agree Obama should have thrown the long ball in 2016. The Majority Leader was going to slow walk anyone Obama picked. No Drama Obama should have went against his grain and created big drama. The timid Dem's constantly shoot themselves in the foot with their aonizing caution.For 8 years The Right plummented Obamacare until the people believed their lies.Why isn't the Dems telling the American people that Trump could possibly get to appoint three more jdges to the Supreme Court? Maybe they are waiting for Mueller to rescue them.
The Democrats like to think that they play fair and that those nasty Republicans are to blame for refusing to vote on Garland and for eliminating the filibuster for Supreme Court nominations. It's true that the GOP is completely sleazy for finding and using the loophole of refusing a confirmation vote for Garland, but as this article says the Democrats didn't make any use of that. And, Harry Reid put us on this path to political control of the Supreme Court by making first use of the nuclear option for judicial nominations in 2013. In short, the Democrats don't play fair, they are just stupid, naive and ineffective. Republicans are sleazy and smart(er). Guess which wins in a political fight?
5
Simply put, look to Ireland.
Perhaps if democrats toughen up, grow a spine and act like a disciplined, United party, they can achieve results. But...these snowflakes are unlikely to do that. Realpolitik people....the point of elections are to win them, not simply participate.
3
This is not helpful.
Hindsight is 20/20
1
To find your voice is to find that you’re one voice among many.
Lots of progressive punditry trying to close the barn door now that the horse is out & demolishing the house. Exit polls indicate that 56% of Trump voters regarded the SC as the top reason for their vote. Democrats? 41%. This is a failure on a scale so massive, it almost makes me stop blaming Mitch McConnell and saying that Democrats deserve every horrific thing that's going to unfold in the next 40 years. Forget the SC. ForGET it. It's done. (Just pray Ginsburg doesn't start coughing.)
Job #1 - take back the House & control of the committees the GOP has weaponized for the last 8 years. There's your "start." And I don't hold out a great deal of hope that the DNC will do any better at that then they did two years ago.
1
Pity the DNC, Hillary, et al only care about themselves, the status quo, and kissing up to the rich donors. The fossils refuse to listen, and will continue to lose until the progressives forcibly remove them.
2
Spook
You do realize that, other than the Hillary part, you just described your own party. Except of course they tell you outright they're going to sell to the highest bidder and you refuse to believe them.
3
Let's not forget that Republicans choose not only extreme pro-corporate right wing judges, but very Young ones also; another way they stack the deck in their favor. Democrats need to do likewise or push for a minimum age of 60 or term limits.
3
As one who has been pleading with the Democratic Party to get a clue for over a decade now; to stand up and *fight* this right wing movement that has been aiming to pack the courts, specifically the Supreme Court, with its ideologues in order to enshrine its ideology, secular and religious, into law, I say -
Don't hold your breath waiting.
Even now, after Donald Trump (!) beat them, and is taking apart the fabric of Americn law, government, and our place in the world -
they STILL don't get it.
They don't seem to understand the insidiousness of the movement whose face Trump now wears and whose agenda he now imposes or how destructive it has been to our national character, principles, and political system.
They don't get what they did and didn't do that enabled its empowerment, and are still doing and not doing.
They don't see that it is up to them to stand in the way of its remaking America into its own reactionary, authoritarian, zero-sum image. Because, if they don't, who will?
Did the right win the Supreme Court, which NO ideology should EVER be allowed to do, or did the left step aside so they could overrun it without a fight? I say, both.
What we have needed from Democrats for years now was not appeasement and shadow Republicanism, but a fully-throated defense of democracy, the rule of law, the principles of justice, equality, human rights, and the commitment to economic opportunity and social justice for *all.*
Will they step up, now that it is almost too late?
7
"Now what?" Well, given that the right controls the presidency, the House of Representatives, the Senate, the Judiciary, and 67 of 99 statehouses I would say that Americans have obtained precisely what they want.
6
My problem with Schumer and Pelosi isn't that they're old (I'm the same age a Schumer) it's that neither of them has the juice to inspire and engage voters. They might be good managers of their caucuses and effective fundraisers, but that's not enough. They've never been particularly articulate spokespersons. If they cared about the party, they'd start leading from behind and pushing forward younger and more charismatic leaders.
9
Such a good summary, especially regarding the indirect but clear influence of elections on the non elected court's composition.
However, Mr. Tomasky lost me at the conclusion, when he suggested that Roe v Wade was in imminent peril. That kind of hyperbole may help with fund raising, but it's no more honest or likely than some conservatives claim that all guns will be confiscated if liberals get more power. It struck an embarrassing off note and diminished the power of the article, at least for me.
1
I seem to remember history a little differently. I, as a Clinton supporter, and many others of us, often exhorted Stein voters and nobody but Sanders voters about the importance of the election because of the Supreme Court vacancy.
I think it is up to the population to educate themselves, and not expect their electeds to do it all, as the author of the editorial seems to think.
8
Isn't it obvious? We wait until we have a majority and then pack the hell out of the court. Two new justices for every one that Trump appoints. Moreover, I am more than happy to put stare decisis aside for a few years. It's been all but dead since the Miller decision.
1
Will the Democrats ever actually be a party? Probably not. It has always been everyone for him or herself. The GOP, on the other hand, gets out the vote by presenting a disciplined front regardless of whatever that front might be pushing. Money and power are the keys for the GOP; ideals exist only to the extent they make the rich richer, the poor poorer, and the lies better so foolish, child-like voters keep giving the GOP the power to cut everyone else's throats. That is a major reason why Trump was elected. That is a major reason why the GOP swamp almost certainly will not be drained this coming November. Democrats: stop your childish whining and your selfish behavior and begin, for once, to think about your country. You screwed it up by getting Trump elected and keep that in mind before screwing up this November's election.
5
To paraphrase Oscar Hammerstien II:
Stand up and fight until you hear the bell,
Stand toe to toe,
Trade blow for blow.
Keep punching till you make your punches tell.
Show that crowd what you know!
Until you hear that bell,
That final bell,
Stand up and fight like hell.
Play this daily and sing along.
3
Conceded the loss before the fight is textbook "Roll over and play nice or just play dead" Democratic party ideology.
Democratic Leadership,
You'd better learn how to stonewall a Supreme Court nomination like the GOP did to the Obama administration. If you don't, the blood the GOP is taking a bath in will be on your hands as well.
There's too much at stake to be "nice." Suck it up and fight!
3
Democratic Leadership...
What?!
Where?
1
There is a valuable lesson of history in the Senate election of Governor of North Carolina, Harvey Gant against Senator Jesse Helms in the last century. He had a strong chance of actually defeating Jesse Helms until the issue of whether to spare Velma Barfield from execution. Even the Pope was pushing for clemency. Unfortunately, Gant gave in to the fear that if he granted clemency, he would surely lose and refused to grant clemency. He lost, became many of his potential voters stayed home.
This is a lesson that any Democratic Senator up for reelection in states that wen strongly for Trump need to head if tempted out of fear of defeat gives in to Trump and votes for any destructively hard line "conservative" nominee.
We are screwed, in the same way that a 10 year old kid wakes one day to find a new stepfather with a belt and anger and drinking problem.
We have Putin/Trump sitting in our White House, grinning at us as he loots our treasury, making sure we have no allies and a weakened social bond. The times they are evil, and that frees us to drink and drug and carry on, for there is no hope of a future.., or not.
We survive, somehow, and understand that we are no better than the lowest banana republic in South America, this was just our time. All empires fall, and we are living in the time of the oligarchs, damn them to hell each and every one.
Well, them and the Republicans.
Hugh Massengill, Eugene Oregon
3
This should be required reading for every Democrat AND Woman in this Country. I'm 59, the very end of the baby boomers. Hate me all you want, millennials. It's time to grow up and learn some very hard lessons. It's NOT all about you. Playing around and posting to Facebook do NOT win elections. Going to marches do NOT win elections. Picketing the offices of elected officials do NOT win elections. Sure, you can do all those things, and may enjoy it. But it doesn't mean crap if you don't VOTE. The main reason the GOP can win: THEY VOTE. Even those much older than I vote. If you don't vote, you will get what you deserve. NOT what you want, that will be lost. But the leftovers, the crumbs. Do you really want to live like that for 40 or 50 years ??? You decide. And soon. Seriously.
2
"The time to play hardball was 2016."
2016? How about 2000? Let's face it, the Democrats have been allowing the conservatives and Republicans to play by a different set of rules for decades. They have naively (stupidly?) held on to the notion that the Republicans had the best interests of the country at heart, were people of sound ethical character and were still playing by the old rules of political norms. And they are always shocked, SHOCKED, when the Republicans stoop to a new low. Obama and Gore's pathetic actions during and after the 2000 and 2016 elections are perfect examples of this foolishness. I'm sick of them.
It will take a new generation of Democrats to fight the winning fight against the seditious partisans who are todays TrumpGOP. The sooner they push out the milquetoast losers who run the Democratic Party the better for the Democrats and for America.
6
"Wednesday afternoon....Senate Democratic Leader Chuck Schumer...argued [the republicans] should hew to their own precedent and wait to vote on a nominee until after the mid-term elections; to do otherwise was the height of hypocrisy."
The dictionary definition of "hypocrisy" IS the republican party.
You can not shame the shameless. I'm quite confident Mitch McConnell will now stand on the Senate floor, and treat the country to a lengthy statement about how critical it is that the SCOTUS seat be filled immediately, in order to do the urgent work of the nation.
Of course, such work was not urgent for the 15 months the seat sat empty while McConnell refused to do his sworn duty and bring President Obama's nominee to the Senate for a hearing.
2
Does this writer really think a Supreme Court Justice is going to be that big of a rallying cry for Democratic voters? At least 80% of the country can't name all or most of the Supreme Court Justices, so to think that this is such an important issue for average voters is far fetched. This is an important issue for somebody who writes for or reads the New York Times on a regular basis, but not for the common citizen. Don't be delusional.
3
If you consider yourself a Democrat, you should be incensed if one more person utters the phrase "...when they go low, we go high". The time for "playing nice" should have been over years ago, but the insistence on moderation and conciliation got us in the mess we are in today. Republicans don't play nice, they will upset the game board when they are losing, and now that they are in power, change the rules to keep it that way. Schumer's continued tepid responses (like complaining on Twitter) to a crisis does nothing to energize the party, it merely reinforces the notion that the "old guard" still runs the show. It's time for new leadership that is more bite than whimper, time for Schumer and Pelosi to step aside.
3
The Million Woman March showed us taking to the streets isn't impossible in the USA. An Arab Spring gathering may be coming. It's hard to think the USA is on the brink of 3rd world street tactics, but the legal system seems to be failing the majority.
3
I expect that when R. V Wade is overturned we will finally wake-up and take the country back.
15 Justices, pack the court if we win.
The Supreme Court has become too political and too young. The Democrats brought this on by not voting or throwing their sulky votes away. The Right is more right than ever - no longer the party of Dwight Eisenhower but a mean spirited, racist, sexist, practically fascist, certainly anti-environmental party with no desire to protect Americans from toxic water or food. It's a sad day but if the Democrats continue to be wishy-washy, that's what happens. The oligarchs have won. The robber barons are back. Dwight would have to be a Democrat today.
4
We are in a dark place.
There is a generation emerging that will bring light - give them 20 years.
In the meantime, we are currently stuck with a Kleptocratic Kakistocric administration, and GOP.
We are headed down the road towards corporate feudalism (both Republicans & Democrats are to blame), but that too shall pass.
Let us nor forget that Joe Biden voted to allow Thomas to clear the Judiciary Committee.
2
I wonder if ex-CIA director Bush Sr. used any nefarious leverage to lean on Justice Marshall so he would resign. Wouldn’t be out of character for Mr. Iran-Contra to do something off the books.
My advice is to keep it simple, Democrats. Fraudulent apportionment, bought politicians, gun rights uber alles, the mortgaging of a generation to line the pockets of today's conservatives. Those are actual issues with potential. Gay wedding cakes, not so much.
3
I recommend Merrick Garland.
2
Mr. Tomasky is exactly right. Unfortunately, Democrats in leadership are not good at putting forward what is at stake. All I heard on MSNBC last night from Kamala Harris and Amy Klobuchar were wet-noodle, wistful remarks about how Dems would block anyone who was not a "consensus pick." Just like Obama. That's why our country is in such trouble today. We don't need a "consensus pick" - we need someone who will stand for something. Even if we lose, we have staked a position that people can be enthusiastic about fighting for.
2
You ask the current Democratic leaders to do something that is not in their DNA - they are masters of avoiding making themselves and anyone else uncomfortable.
Reid, Pelosi, Shumer all defer to the "decorum of the Senate" even as they are punched repeatedly. I will guess that I will never see a re-emergence of a hard-nosed Democratic party in my lifetime.
2
The GOP is the kid who will say and do anything to get his way. The Democrats are the kid who is always polite and finds that getting down and dirty to establish themselves is beneath them. When the Democrats start fighting fire with fire, perhaps they will become known for something other than acquiescence in the face of GOP bullying.
1
Democrats need to grow some fangs and get in the gutter with Republicans if they're going to leave any legacy on American politics in the next century. I've already read too many reader comments that Democrats ought to be principled and not halt or steal the next SCOTUS appointment as the GOP did. But Mr. Tomasky is right: Dems, you have to learn from your mistakes and actually fight tooth-and-nail for everything. Don't squirm about over etiquette and "going high when they go low;" don't give the opposition an inch; you've lost most of the important battles being "principled." The GOP wants to win, not hold a pow-wow about manners and fair mindedness. We live in too precarious of times for American institutions to be handed over to a party that abates climate change, historical upwards distribution of wealth, and holds the lives of immigrants and voting rights in such low repute.
I'm very disheartened to hear that Chuck Schumer--the epitome of the liberal's suicidal preoccupation with fairness--is what we're banking our hopes on.
5
I have always thought that the Japanese soldiers who hid on desert islands after World War II where they could continue to fight for their country exhibited a crazy kind of honor, albeit in a lost cause.
Theirs perhaps is not a bad example to follow by never-Trumpers who are determined to fight on without fear, trepidation or dread until the last of us reaches shore and rescues the pitiful survivors of MAGA and the worst President ever seen in the land.
https://en.wikipedia.org/wiki/Japanese_holdout
1
The Sky is Falling! The Sky is Falling!
This is not good news, but every op-ed headline right now in the NYT is panic and gloom.
Let's remember a few things:
1) The person appointed and confirmed today is not the same person that will be on the bench 30 years later.
DDE appointed the conservative Earl Warren.
Chief Justice Roberts saved the Affordable Care Act.
Kennedy was confirmed when the Dreaded Bork wasn't.
2) Trump has not nominated anybody yet.
3) It takes 50 votes plus Pence to confirm, and there are more than a handful of Republican senators that are not slam-dunks... those who will not be running again, plus a few remaining moderates, especially of the female persuasion. Hopefully my Senator Collins will not accept any more "promises" about votes that don't materialize. Popular as she is in Maine, any more party-line Trump support could end her career as easily as being primaried, and she knows it.
I do plan to vote in November.
Dan Kravitz
4
As a reasonably well off progressive, I find it more and more difficult to motivate myself on this hugely important issue. Mitch McConnell is a low down varmint who has broken the supreme court. But he could not have done that without the literally tacit support of a huge number of lean-Democratic non-voters in the last election. And in almost every election. The republicans only win elections because their minority share of the populace gets out there and votes. I think many of their motivations for doing so are hugely suspect, but they get out there and do it. Why, why, why do all those who are adversely impacted by what republicans do not get out there and vote?? I vote against republicans because it is the right thing to do, especially these days. But if the people who are really affected won't get out there and vote for chrisakes- why should we have to beg? Maybe I should just stop worrying about it so much and ignore all the idiocy that is going on. After all, my children are not being taken away from me. I and my family don't need access to abortion. It is so, so dispiriting. If you can vote, and do not, you should be ashamed of what you are letting happen in this once relatively great country.
What is often lost in these discussion is that the Republican voters have no morals when it comes to winning and are much more likely to fully support whatever dirty tricks it takes to make that happen, like gerrymandering and voter purges and dark money in politics. They claim the moral high ground while occupying the moral swamp. Far from punishing corrupt behavior by their elected officials, they cheer for it. They love it when Trump and Congress stick it those dirty liberals and colored people and asylum-seekers and Muslims and mainstream media and every other group they hate and/or fear. They're going to make America great again by any means necessary.
Democrats don't know how to play the long game and won't fight for anything that can't be won with little effort and without offending anyone. For decades, Republicans have been demonizing taxes and unions and public "giveaways" and the "liberal media" and dark-skinned people and anyone who isn't like them. And look where we are now.
First, the Democratic party needs new leadership, then they need to figure out what their rock-solid core values are, and then they need to fight, fight, fight for those things until they win over the public and get their votes.
This country is far more liberal than our federal government. We suddenly have same-sex marriage and marijuana legalization is sweeping the country. Those things were unimaginable just 10 year ago. And so was Trump. Democrats have no one to blame but themselves.
1
I really enjoy it when progressives wheel out the ol' sports metaphors - it is like those talking dogs on youtube - you know they're not really talking but it is amusing nonetheless.
2
The Democrats are TERRIBLE at messaging. And they have a knack for losing. I wouldn’t count on anything.
They SHOULD be pounding out a narrative but they’re not. They check the polls and drift with the wind instead.
Schumer gets up there with his reading glasses and does some bland junior college professor impersonation for C-Span then disappears somewhere.
Maybe our hope is in the young politicians coming up like this 28 year old from New York. I hope so, but I’m not holding my breath.
Even if Meuller plainly lays out that Trump committed treason, the Republicans will leave him in power. It’s hard to be believe, but we may have a traitor in the Oval Office.
Vote D in November.
6
Pelosi/Waters 2020!
1
Well, I guess it's finally time to update my passport.
1
We need to win the populace back by somehow delegitimizing the out of control right wing media outrage machine in the eyes of "conservatives".
1
The only way Democrats and so-called liberals will make anything happen is if they finally realize that independent voters are what makes the world go 'round these days. Figure it out or lose the election(s) - again.
2
Remember how Republicans used to complain about judges "legislating from the bench?" Well you ain't seen nothing yet.
7
Oh, I care, Mr. Tomasky. I care very much about the Supreme Court and the implications of a second Trump-appointed Supreme Court justice (and heaven help us if RBG decides that the time has come for her as well).
If anyone wondered, as I did, why Justice Kennedy chose this particular time to retire, rather than waiting until later in the summer, or practically any other time, the answer can be found in the article in this edition of the Times entitled, "Inside the White House’s Quiet Campaign to Create a Supreme Court Opening". Just when you thought that the Trump family couldn't go any lower - by God, they did. And while they probably did nothing illegal in lobbying Justice Kennedy to vacate his seat, they prove once again, that they are an ethically bankrupt bunch who will stop at nothing to get what they want. Disgusting.
8
A benign AI is our only hope. At least something to truth the humans in real time...
You expect leadership from Schumer, who voted yes on Alito and Roberts? He's weak and Trump knows it.
7
Obama should have breathed fire and should have proclaimed that he wasn't elected for three years, but for four.
5
In other words if Obama and "centrist" Democrats hadn't been such corporate sell-outs (sub nom "white," "suburban," "gentrified," "upper middle class," "privileged," "fussing over the icing of cultural issues) they might have won the election. This is hardly news... at least among those of us who aren't corporate sell-outs (aka... etc.)
The system is rigged and the fact that the confederacy was allowed back into the union has ruined this country for all time.
3
Democrats need to fight this nomination tooth and nail. What’s at stake here is the return to Paleolithic conservative laws, currently in bed with Trump’s authoritarianism. Take no prisoners. Do or die!
5
"The Senate stands ready to fulfill it's constitutional role by offering advice and consent on Trump's nominee to fill this vacancy." Mitch McConnell 6/27/2018. Pretty fancy language for a thug wouldn't you say? Since he admits it is a "constitutional" duty, can we have him impeached for not fulfilling that duty in regards to Merrick Garland? I only read this statement, and it had to be a written statement, because I'm sure he would have choked on these words if he had spoken them out loud.
1
The premise is that the court should be crassly politicized. Obama and Hillary had more class than to make the Supreme Court jump like a kangaroo. Battling wrong with wrong is precisely what disgusts Americans. The long sweep of history - we'll beyond 40 years - punishes swine and rewards honorable conduct.
1
A justice can’t understand that the ban on travelers is the same as internment of Japanese Americans! This is proof that the justice is unfit. He can’t think, he can only deal. Politics rules the court.
2
It will be interesting to see how the evangelicals and conservative Catholics may have to actually deal with social justice issues once they can’t “Yeah, but abortion!” their way out of it.
Once Roe v Wade goes, we will see if they truly just felt abortion was a more pressing priority or were just using it as an excuse.
1
I'm a bit tired of ignorant Democrats so I am going to try and teach you the history you apparently never learned, failed or refuse to acknowledge. First, in the 1800's there were 4 times that a justice was not provided a hearing after being nominated (including during the Presidential election year). Second, the original stolen seat in modern times was Bork's seat. Kennedy took unprecedented steps. We ended up with a liberal justice instead of a true Conservative. YET LIBS SEEM TO FORGET THIS FACT!
1
Bork was rejected because he caved to Nixon during the Watergate Saturday night massacre, when two other more principled men refused. It was a matter of character.
3
You need a new history book, Matt.
Unlike Garland, Bork got his vote and several Republicans voted against him.
He was an extremist, and arrogant in the extreme. His published work was downright scary.
Bork lost the job on his merits.
He was opposed to civil rights legislation, believed there is no right to privacy, he opposed voting fairness, and he was instrumental in Nixon's Saturday Night Massacre, one of the darkest chapters in Presidential history.
He lied in confirmation about his views on justice and the law. And did not lie well; he was criticized on both sides for his duplicity.
He had openly lusted after the the job for years. A very bad look.
No theft there, however you struggle to define it.
You can't learn any history of value by reading the headlines and listening to FOX.
5
This piece is dead on. With all due respect President Obama cost us the election by 1) nominating this Garland but also 2) inflammatory stuff like the the bathrooms. He didn't NEED to that then. It was vanity. He could let the NEXT president do it. Instead what do we have.
1
This is all Hillary's fault. She should never have run. She had her shot in 2008. If she hadn't run, then the field wouldn't have been cleared and we could have had an actual Democratic nominee (i.e., not Bernie Sanders) who wasn't under a criminal investigation. If that had happened, we likely would have a Democratically controlled Senate, no Justice Gorsuch, and no Justice Cruella de vil or other troglodyte to be nominated by the Liar in Chief. Instead, we have this.
Thanks, Hillary.
1
No one will believe this but I held my nose and voted for her last election. Glad she crashed and burned. I cannot stand her.
Thurgood Marshall was a very sick man when he retired. But the blame for Clarence Thomas, a man who was unqualified as either a legal scholar nor as a human being, was confirmed by a DEMOCRATIC Senate! Every Democratic Senator who voted for his confirmation is guilty of all the evil he, and his contribution to the reactionary majority on the Court.
But Democrats are wimps. If the ENTIRE Democratic caucus were to commit to paralyzing the Senate if McConnell pushes more of these Constitution-ignoring reactionaries, the Democratic base WILL unite around them. Because Trump's destruction of our Democratic Republic to make himself all-powerful dictator MUST BE STOPPED!
2
The Democratic Party has been cursed with too many egos and not enough common sense. Ruth Bader Ginsburg should have retired. Bernie Sanders should not have kneecapped Hillary Clinton. Hillary shouldn't have run, (too much like the Perons). Now we have the biggest ego of all time deciding American politics for the rest of my life.
4
Obama failed to see how Latino would force that community to fight, which is why I expect Trump to nominate the Indian-American or the Venezuela-American on his list, let's see how the Democrats handle that.
Obama failed to work to get Democrats to do anything as Republicans won over State Governorships and Legislatures across the Country.
Obama failed to create and nurture a "farm team"of Democrats ready to take his torch.
Obama was a great man, but these failures may cloud his legacy.
2
Won the Supreme Court?? There hasn't been such an institution since 2000. Any and all decisions rendered by Gorsuch are null and void since he is not an actual SOTUS justice.
And Clarence Thomas was the most unqualified appointment since...oh, any Trump appointee. Whatever.
Another angle is the USA is passé and young people might seek other horizons. If America is a mean-state, then maybe someplace else might not cause dyspepsia. If you've been categorized as merely one of many then it is time to become an individual possibly elsewhere. The GOP wants you to tote a gun and a bible and drive a Ford truck.
1
With the Supreme Court gone all DJT needs to work on is how to role back the 22nd amendment!
There are essentially no cards left for the Democrats to play. They gambled everything on the idea that it was "her turn" and in losing that, they lost it all.
For us.
For decades to come.
And it really won't matter if we win back the House this year or the Senate in 2020 or the Presidency in 2024 because John Roberts will still be "calling [his] balls and strikes" for thirty or more years and you can bet that the strike zone will be tuned appropriately based upon which side is doing the pitching and which side is at bat.
And to everyone who's paid to write editorials or op-eds at the NYTimes: Remember: You helped make this all possible.
1
Republicans vote to win. Democrats vote to be pure.
3
Judge Garland was nominated during a Presidential election year.....Not the case now...Just stating the Obvious!
Another thing Obama didn't do. I never expected much from him and he didn't deliver.
1
This is just sad.
Obama delivered an intact economy after a terrible recession. But let no good deed go unpunished.
2
But they voted for Donald Trump en masse. They, directed by their political leaders, had their eyes fixed firmly on the prize of that swing Supreme Court seat. Democratic politicians and their voters did not.
___
Trump lost the popular by more than 6m votes; IF it is found there was Russian collusion in the election there will be consequences. Depending on the mid-term outcome, should Trump be impeached, think of who would nominate Ginsberg's foreseeable replacement?
For better or worse, thank HRC for this country's inevitable shift to the Right.
Left Wingers should go out into the street and break windows, set dumpsters alight , and stop , block , freeze freeway traffic by doing a protest lay down in the road. That will promote the Left Wing cause and get sympathy for your corner come the next election. Also refuse to serve Right Wing people in restaurants and quash free speech and expression of one's political views. Have a nice day!
Democrats have been the nice girl in a bad neighborhood for quite a while now. We saw the crime rate rising but stayed put. The police are incentivized to look the other way.
We never made a fuss because that’s what nice girls do. Now they know who you are, where you live and that you are defenseless. You’ve been mugged several times but hey, happens to all of us.
Mother says hold onto your values and walk a straight path. Sister says speak up. Uncle says just make the best of a bad situation. Brother says you’re exaggerating the danger.
As your father I’ve watched you stumble and fall, you’ve always had a good attitude and I’m proud of you but now I am afraid for you. You are in over your head. You need to move, you need to never walk alone. You need to take a self defense course and you need to buy a gun. You need never use it but they need to know you have it and are prepared to use it.
Your days of innocence are shortly numbered and once gone there is no going back.
Call me crazy, but I don’t understand why the entire court isn’t made up of moderates. Seems to me all judges should be moderates anyway, as they’re just interpreting existing law and precedent.
Well, then there’s that little thing called “political reality”, where the party in power is always pushing they’re agenda. I’m crazy but not stupid. What’s stupid is making these appointments lifetime. Justices should be allowed to serve no more than 10 years. That would solve a lot of problems if it weren’t unconstitutional. Big sigh here.
Now this could be crazy or stupid, but Roberts may eventually become the moderate this court needs. It’s his court after all. I guess there’s always hope.
1
Obergefell is no more at risk than Marbury v Madison. John Roberts already said he considers Roe v Wade settled law.
This piece just goes to show how desperate extreme leftists are to win their arguments in a stacked SCOTUS because they cannot win the votes of the governed.
Good luck with that hypocrisy of McConnell argument aimed at the Republican voters.
With a giant addition to the deficit through the tax bill, the GOP was not even embarrassed about their hypocrisy! Hypocrisy is nothing to be ashamed of and has kept them in office for far too long.
5
I do not understand why the New York Times
allows an "Opinion Writer" to insult a whole class of
people:
All of those “Christian” conservatives knew very well they were voting for a man who was about as Christian as Larry Flynt. But they voted for Donald Trump en masse.
Perhaps they did, perhaps they did not, but to present
as an objective fact is not necessary.
It is time to bring back the Compromise.
The Senate Democrats should approach Justice Ginsborg
asking her to resign if the Republicans in the Senate will agree to a compromise:
If we don't fight you on a moderate Conservative
to replace Kennedy, you won't fight us on a moderate
Liberal to replace Ginsburg.
Doomed. To live in a country where wealthy women go abroad for obstetrics care and the rest suffer to extremes. Why don’t the fanatics decide who gets taken off a respirator or who deserves organ transplants and we can make hospice illegal because we all have a “right to life.” I really really always wanted to live in a theocracy. Move over Ayatollah Kohmeni, here comes America. So thrilled to be here.
6
Some very good points and advice for Democrats. One thing I take issue with: "All of those “Christian” conservatives knew very well they were voting for a man who was about as Christian as Larry Flynt". Unfortunately, many of those "Christians" are convinced that Trump was hand picked by God. These people will believe anything, no matter how ridiculous. It's very difficult to fight that kind of stupidity with logical reasoning.
2
Justice Kennedy, history will judge your act of cowardice for retiring before the mid-term elections of 2018. Think about that when you are at home in your law library feeling despondent and alone.
Thanks for (NOTHING) your ill timed moment in history.
3
The Right has won and Now what? Oh don't be coy... "What" is what we have always done to our minorities in this Hellacious land since time immemorial of course. Delimit and marginalize them with crafty, oily court decisions with a wink and nod to religion and tradition. Let's not pretend otherwise or that this country is anything other than slow-walking due process for all. Hate of the "Other" is as American as apple pie!
1
"And don’t forget Robert Mueller, the special counsel, or think he isn’t relevant here. If he issues a report in July or August, as many now expect, and if that report presents evidence that Mr. Trump did indeed obstruct justice, Mr. Schumer and the Democrats can make a strong case that a president governing under such a cloud — who might yet be found to have colluded with Russia in his election — has no business making Supreme Court nominations." and a man who rips babies from the arms of their mothers has no business calling himself President of the United States. To preserve the integrity of the Justice Department, it is imperative that the Supreme Court Justice appointment be delayed until after the November election.
1
The U.S. voters seem to prefer the snarling predator to the cute little bunny rabbit. Our Democrats are truly babes in the woods. They need someone with vision, and then they need to listen to them. It used to be these Republican appointed judges mellowed out after a few years on the bench, but I'm not sure that holds true today. A drowning party fights for its life with everything its got - including lies, treachery, and cunning. That's the show we're watching right now.
1
Just for the record, the Right did not win the Supreme Court. They stole it. President Obama had placed a very competent candidate in Merrick Garland, respected by both sides, before the senate. Mitch McConnell refused to even give him a hearing. That broke both tradition and the intent of the constitution. This is corruption at its highest.
3
If the Democrats follow the author's advice, they can change the very structure of American politics for a half century by using this situation to drive people away from the Republican Party in droves starting in November 2018.
McConnell will get Trump's nominee installed into the Supreme Court before the election. The Alt-Right wants bragging rights and this is how they will roll.
But a bitter fight in September-October guarantees that Democrats and Independents will be motivated to vote in November. The winning Republicans will less so inclined.
We can be assured that the Court will find Roe v. Wade unconstitutional before the 2020 election. At that point, not a single Republican in the House will be pro-choice. Not one. And the two in the Senate will be discredited for permitting the vote on the new Justice to proceed in 2018, which they will.
The GOP is well along the path of being a party of old white supremacists, and that is a losing position. The Democrats must be aggressive, ruthless, and willing to take no political prisoners. This is how the Republicans have won. Going high, while they go low did not work. New plan needed.
1
Schumer is not the man to lead a scorched earth battle with Trump over a Supreme Court nominee. Schumer doesn't even try to enforce voting discipline on his own caucus.
Schumer could, however, be the man to make a deal.
Trump wants a wall. Let the price be the nomination of a mainstream, centrist judge to the Supreme Court to fill Kennedy's vacated seat.
If Schumer really wants to show his negotiating chops, he could try to extract a public pledge from Trump to nominate a judge who can get at least 66 votes in the Senate should one of the four liberal justices retire or die while Trump is President.
Pure nonsense. If you do not think that leftists have fought for the court all these years and played hard-ball politics, then I have a collapsing Democrat-constructed bridge to sell you. The Dems did not coin, but are responsible for, the term "Borking". This was the smash-mouth rejection of a candidate who was on the right side of the spectrum. It initiated the oppositional practice of smearing court candidates on the basis of their philosophy. And the war was on, well before most of the examples of partisanship cited by the author. Anyone with a clear understanding of how the court is now filled, knows that any court candidate, will who has not fallen in love with a barnyard animal and gotten caught at it, will be pushed through regardless. The Democrats have made the stakes this high with the transformational nature of their appointees. Trump's nominee Will be appointed. Another prediction- The Democrat chain from the Hillary campaign to the DNC associated law firm, to the Washington opposition research firm to the Brit ex-spy who obtained the unverified dirt on Trump from sources affiliated with the Russian govt will be investigated for "collusion" with the Russians by getting something of value from foreign nationals to influence a political campaign- a violation of campaign law.
1
Just an aside - I am not sure I would debase Larry Flynt by equating Trump to him. Flynt has higher moral and ethical standards!
As a Canadian, I am shocked at the lack of checks and balances that exist in American governance. Trump, under investigation of serious crimes, is permitted to take down your country. Make it stop, please.
3
"If the Democrats press Mr. Schumer’s hypocrisy argument effectively, public opinion could turn in their favor, even in some of those key Republican senators’ states."
I think this statement presupposes that Republican Senators care about the appearance of honor, or that their constituents would actually punish them for their hypocrisy. I think that ship sailed in 2016, when the Republicans failed to do their constitutional duty by confirming Judge Garland.
1
Regardless of the political flavor, getting another conservative voice on the panel will do our nation good and hopefully reverse some of the horrendously harmful “progressive” victories in recent years. Progress is not always synonymous with helpful—there is a lot of wisdom (knowledge from experience) in tradition.
1
You may well be correct.
Just, please, spare me a rerun of Roberts' self-serving, duplicitoius paean to stare decisis. That man never met a rational law he did not immediately put in his sites and embark on the long game of getting the nasty thing thrown out of the canon on flimsiest of rationales.
Based on SCOTUS decisions of the recent past, we have abandoned any sense the law represents, and defends all the people.
It will take years, but conservatives have set us on the road to anarchy, from the streets to the boardrooms to our very government. The NRA has been busily arming the revolution. Mr. Trump has been busily rousing the rabble.
This is exactly what Democrats need to do - and it terrifies their leadership.
1
Obama was the most timid, naive president I've known in 66 years, whose interest in comity meant he didn't really stand for anything and got rolled for everything by Republicans willing to sell out our nation for political gain. Americans who love liberty as a communal responsibility rather than the greed behind the teaparty flag, "Don't tread on me" must understand we're in a generational slog women recognized in the 1800s when the Supreme Court consistently ruled they didn't have the right to vote. Liberals need to understand our hope lies with the legislative and executive branches of government because the judicial branch will become the venue for oligarchs for at least a generation to continue fleecing Americans like they did with the recent union and arbitration decisions that simply seek to divide our great nation, one against the other. We can either hang together or hang alone. It's our choice.
2
Here's something the Democrats can try: do nothing. In fact, do more than nothing, instead fast track the entire Supreme Court nominee process. Don't put up any resistance or roadblocks. Let Trump and McConnell do their thing, let them pick the single most conservative nominee they can think of. This way Republican Senators like Collins and Murkowski might have trouble voting for such a candidate. The only strategy to "win" this is to try to get a few no votes from Republican Senators -- thus a truly despicable nominee must be chosen.
1
Mealy mouthed ,ineffectual Chuck Schumer has been out smarted.Out played and out classed. Most of the time on purpose.
The Democrats should have been calling for mass protests and general strikes to show these Corporate owned Congressmen who really has the power in this country.
The fear of a revolution is so far back of their minds they think they can take everything from us without a fight.
If Bernie Sanders had called for his army of young energetic people into this war in the Capital the fear would have been real and immediate.
That is what we need to do now. Grind this economy to a halt with general strikes. Make them not ask them to do the bidding of the people not the donors.
2
So how are we different from a third world country where one man in the White House or the Supreme Court can tilt the country in a direction?What happened to the system of checks and balances? To the government by the people for the people?
Worse yet: we’re bombing other countries to impose our “democracy “ on them!
1
The problem of progressive is that we realize that degrading the democratic institutions while achieving our goals is counter-productive and dangerous. Unfortunately, the other side has no such qualms. This is the origin of the disparity in this fight. We won't destroy all to win but some conservatives will. I still think that morality matters but I also do not know how to win when the other side is willing to destroy to world. It is depressing.
1
I just hope I don’t outlive our democracy. After I’m gone I don’t care what happens to the Bernie & Jill Stein voters, or to my three nephews, sister and brother-in-law who didn’t vote “because our vote doesn’t count.” I don’t have children, so I also don’t care about your offspring either. Cynical, but I’ve had a lifetime of trying to convince people to vote.
Now what? Oppress the poor and helpless, Boost Corporate people over actual people. Money for the wealthy. Less for the poor. What Conservatives have stood for since President Grant. Now what? Where have you been the last 150 years?
Ginsburg was older than Kennedy is today during Obama's presidency, yet she stayed on. Disaster.
When will Trump be replacing Ginsburg with a far right Justice?
Ditto Breyer.
For all those liberal and independent voters out there who thought they couldn't hold their nose in 2016, are you still "feeling the Bern?"
Because lately to me it sure feels like our feet are being held to the flame.
To all of the screamers and whiners, it comes down to voting. If you don't vote then it doesn't matter 'how things should be'. The loss by Hillary was just the tip of an iceberg of losses going back a decade. In the six stares that Trump flipped votes by Democrats were down by almost a million compared to 2012.
The Clinton campaign DID make the argument about the Supreme Court and other judicial appointments being at stake, repeatedly. Did Mr. Tomasky have his fingers in his ears?
2
This article emphasizes the Supreme Court way too much.
Democracy is voting, and voting is where contentious issues should be decided. When 9 justices decide a contentious issue, it reflects a failure on the part of politicians to form a workable compromise, which is what group decision-making is all about. About 1/2 of eligible voters vote--and many of those who don't are poor. We get what we vote for, not what the 9 justices vote for. The election of Tantrump proves how many low-information voters there are in the US, just as the wars on Vietnam (brought to us by Democrats, please remember) and in the Middle East prove also. We have met the enemy, and they are us. Regarding Obama, what did he do about the war on drug users, which for decades, including the first Prohibition Era, targeted and targets mainly the dark-skinned? And of course Clinton was in favor of mass incarceration. This is an issue of human confusion, not partisanship, and will not go away. Speaking of skin color, why does the NY Times continue to use the terms black and white when race is not a biological fact? This kind of language contributes to the us/them mentality that Tantrump fuels. Suggestion: if a reference to skin color is needed (and usually it is not), simply say "light-skinned" or "dark-skinned" (or something in between if you like). This is factual, not artificial.
Think for yourself?
Think for yourself?
"All of those 'Christian' conservatives knew very well they were voting for a man who was about as Christian as Larry Flynt. But they voted for Donald Trump en masse. They, directed by their political leaders, had their eyes fixed firmly on the prize of that swing Supreme Court seat."
Small quibble, but don't you mean "They, directed by their RELIGIOUS leaders..."? So much for separation of church and state...
1
Obama kept thinking, up until his last day in office, that being reasonable would get him somewhere with Republicans. Amazing.
3
Maybe our lack of engagement, as liberals, goes with the territory.
We navel gaze, we shroud ourselves in me me me, whether it’s our ethnic identity or sexual identity. We magnify the smallest grievances into political causes. Recall micro-aggressions? That’s us. Some of our most fervent supporters watch more TV than they read books, and have no idea what the three branches are or which district they live in, but if you give them a candidate who matches their ethnic make-up, they vote as an astonishing block of 98%.
Other fervent parts of our coalition are literally ignorant - they’re children, many in high school, many in college. They’ve never had children, never owned a home, never had a true profession, never fought in a war. On the rare chance that a veteran does join our cause, we wrap them in the flag and run them, that’s how rare serving our country has become on the left. The ones we do fawn over - like Stacey Abrams or Cortez, have biographies that are underwhelming to say the least; barista, community organizer. And always living in debt.
We live in cities, and are perfectly happy with this. We regard those who don’t as rubes, deplorables, and bitter clingers.
And honestly, it’s not even clear if that many of us really even love this country. I know I don’t. I detest America First.
In short, maybe the lack of power just goes with the territory. We care and know more about ourselves and the world than this country, and so the county rejects us. It’s sad.
1
Let's be real here. The Democratic party has reverted to behaving like feckless losers time and again going on decades now. Where is the fire? It certainly doesn't come from the party apparatus itself. They are too beholden to special interests and corrupted. See Lieberman, Joe or Baucus, Max or Nelson, Ben during the Affordable Care Act push. Then look at the 1000 other incidents...and that's underestimating the problem. There were many people who voted for Trump simply because they felt they had a better chance of reforming the GOP, the dominant force in American politics for nearly 40 years now, with him instead of with the clownshow opposition party. That's how low the fortunes of the Democrats have sunk. Their lonesome "victories" have come from Judicial fiat from a Supreme Court with assists from Anthony Kennedy. The ACA was a bust out. So was Dodd-Frank and both were quickly and easily gutted when the GOP resumed power. The left needs to learn how to FIGHT. They need to stop questioning and undermining and mocking basic aspects of society like patriotism and people's need for spirituality in their lives. There are thousands of years of examples that show this mindset is a complete loser. Yet they aimlessly persist with this half-baked ideology that wins them nothing but heartache.
Even if there is a smoking gun the chances of a criminal indictment of Trump withstanding judicial review has gone from slim to none.
1
"if you watch the video, you’ll see he wasn’t exactly breathing fire."
Never was and never will.
I know him for 35+ years.
He mastered the art of giving constituents lip-service and custom-tailor laws for Goldman Sachs. Never has any passion for liberal or progressive policies, and always ready for TV photo-op.
For me , he is a Congressional careerist and complicit and will never dare to challenge Trump. He knows Trump will just publish the checks he gave him over the years.
He is known in Brooklyn as WSPSTS.
Wall Street Patron Saint Tailor Schumer.
1
The great irony is: over the past 20-30 years, the Democrats have tried to play both sides. They've tried to claim to be fighting for the middle class and poor, while at the same time buddying up to and catering to large corporations/lobbyists, e.g. big pharma, big health insurance, banks etc. The result? They've controlled congress only 4 out of the past 24 years (winning in 06 - 08 practically only because of black swan events such as the financial crisis and war in Iraq)., and the latest result is the courts will continue to be pro-cronyist, anti-middle class etc. The swamp is now deeper and more entrenched than ever.
Meanwhile, they've decided that continuing with Schumer and Pelosi at the helm of the party is the answer, demonstrating that they haven't learned a thing. They still think buddying up to the DC lobbyist class is the answer. The incompetence of the Democratic party isn't stunning anymore...it's just downright pathetic.
Next steps? #1 - Change democratic party leadership, #3 Stop catering to corporate cronyist/lobbyist interests, #2 - Start representing the middle class, working poor, and small business again.
1
Democrats began caring way long before the first lady dissed the American public with her now infamous jacket.
The Resistance has been in place since day one of the Thing.
While Nov. 6th is pivotal, equally important is a staunch and united opposition to the potentially twice stolen Supreme Court appointment. The GOP is stomping at the bit for a quick and conservative (very conservative) Supreme Court nomination to be rushed through Congress and signed off by King Don. How important is it to stop the nomination, it was Justice Kennedy who helped pushed George Bush over the presidential finish line in 2000. One of many notorious calls by the Judge including Citizens United, guns gone wild, piling on the immigrant crises with the Muslin Ban ruling and topping it off with a major chunk out of the union labor armor.
Clinton won the popular vote by nearly 3 million people versus a 80K electoral college win by the...Thing.
Better late
1
As the author demonstrate so well in 1991, the Democrats had the vote to block Clarence Thomas and they did not do it. They had an opportunity to forced President Bush to nominated a moderate and they did not do it. So they have to acknowledge their part of responsibility in the 5-4 decisions against Muslim immigrants by the weaponization of the Presidential power, and against labor and a gay couple by the weaponization of the First Amendment.
1
Do not totally despair.
Let's say that the GOP gets to stack the Supreme Court.
This is not at all a sure thing when it is entirely possible a few female pro-choice Republican Senators will find a backbone and want to be in the history books as the Senators who saved American Democracy.
But if Trump's minions do gain a 5 - 4 majority the carnage to our Constitution could stop by January 2021,
Hopefully, the Democrats can take the House this year & maybe even the Senate. If not now, then 2020.
Then as has been posted elsewhere on the NYT, a Democratic Congress with a Democratic President starting in 2021, can vote to increase the number of justices on the court say from 9 to 11. Totally within the power and authority of a Democratically controlled Congress to do.
Then the Dems vote to put 2 new liberal justices on the bench and the numbers change dramatically. It is now a 6 - 5 liberal majority. If I had a magic wand, I'd bring the court to 13 justices and stick it to the GOP by having an insurmountable 8 - 5 liberal majority for the next few decades at least.
So let's not fear a 40-year reign of horribly regressive SCOTUS rulings. Maybe 3 years of SCOTUS damage to compound the ongoing nightmare of Trump's idiocy, which a Democratic Congress can reign in starting next year.
So there is some light at the end of the tunnel.
If the Democrats lose in the midterms, I am afraid America is finished and the authoritarians and neo-fascists take over permanently.
Democrats: Please make Election Day a national holiday NOW. With voting restrictions, gerrymandering, flat out lies, those who work cannot get out and apparently haven't thought to do mail-in ballots.
It's more important than any other celebrated holiday - make it a day off to go VOTE.
VOTE in November.
D is for Drive forward.
R is for Reverse, if that wasn't obvious to anyone by now.
Anyone who is marginally concerned about the future of democracy needs to vote in November as if their freedom depends on it...because it does.
1
And vote to win, not write in some candidate that makes you feel "good" because the democrat doesn't reflect all your pure values. I'm talking to you Jill Stein voters and Bernie bros.
1
even still, it will take generations to undo the present court's damage.
this country hardly seems worth fighting for anymore and I blame the apathetic left for always holding out for some noble, unicorn leader whereas the right is happy to go with a broom wearing a wig- which is what happened in 2016.
ugh, time to pack up and go somewhere else.
This may be a very arrogant post; be that as it may:
The Republicans know Americans are ignorant and that humans are filled with unconscious (sometimes conscious) bigotry, which is manifested in irrational choices where the bigotry is neither acknowledged or consciously known. They play to that, they win with that. It doesn't matter that their policies have devastated their voters, the economy, led to worse health care, or continued gun carnage. The main fear they play to is that they will be infested with "foreign bodies," the organisms symbolized by black, brown, Muslim, gay, transgender, etc. persons (who are not seen as persons but as invaders of the self, germs that break the skin barrier). They also know that hate is a much more powerful motivating force than love, compassion, or reason.
Democrats try to be humanistic, but that's so 2008. Not that we should drop that. But we do have a real enemy, and it is not just Donald Trump. It is the stealing of the wealth of the American people, accumulated by the millionaires and billionaires. Show the graphs, they are not that hard to explain: how all the wealth (GDP) gained in the last 40 years or so has all gone to the top. How the Republicans have played Americans for fools (successfully). How people in other countries (e.g., Scandinavia) have made a better life for their people than we have. But to do that, we must cut ties to the corporate center.
Bernie showed us the way. Somebody, pick up the torch. Please.
2
I agree Democrats should fight tooth and nail. If we don't our Democratic republic will be lost.
1
The only thing that matters to the GOP is winning. Facts don’t matter, morals don’t matter, nothing matters except winning. That’s why they rule this country, even though they are minority. The Dino Dems and “hopers” like Obama wanted to play fair, now we’re witnessing America take the final steps into pure oligarchy.
The republican party has infested America with lies, malfeasance, hatred, racism, corruption, misogyny and yes, treason. I need to believe that the current political climate of our country is going through a cycle much like the 'natural cycle' climate change deniers hang their hats on. We've had some pretty discouraging lows in the history of this nation; slavery, civil rights, child labor, civil war, a campaign to make Native Americans extinct, indiscriminate pollution, oppression of women, prohibition, and on and on. We are clearly our own worst enemies but we manage to survive despite our best efforts to muck things up for everyone. I need to believe this current episode of America's woes will soon become just a troubling memory in the maturation of a nation.
1
Shame on Democratics for straying from their historic centrist roots, with leaders like Scoop Jackson and Bill Clinton, to extremist progressives like Bernie Sanders and Maxine Waters. Of course any Republican president is going to react with more conservative Supreme Court nominees to counterweight this disruptive and increasingly influential wing of the party.
1
Once again, the Democratic Party and the Clinton campaign are being criticized unfairly for the debacle of 2016. It shouldn't have been necessary to hammer into peoples' brains that the future direction of the Supreme Court was to be determined then. Everyone already knows that! They just didn't -- God knows why -- think it important.
1
"No Citizens United ..."
Because nothing says First Amendment like giving control of political speech to the political class.
(And please, do not start with the progressive rant that CU treats corporations as people. It doesn't, no matter how often the NYT makes that mistake. Read the decision: people do not lose their 1A rights when they band together as a corporation.)
"... no Hobby Lobby decision, none of the bleak outcomes we’ve been battered with in these past few days."
Because nothing says progressive tolerance like demanding to push your religion down everyone else's throat.
A "conservative" court that treats the Constitution as being meaningful is a conservative court with limiting principles.
A progressive court has no limits other than its feelings.
In 2020 when a Democratic House, Senate and President are possible, the first order of business should be to enlarge the court to 15 members to compensate for the two stolen seats.
I can tell by the whopping 47 comments that Dems are really fired up about this.
I get it. Every single day some new, horrific thing happens. We're all exhausted. But, for the love of Pete, this is THE BIGGEST ISSUE we will face in our lifetimes. We CANNOT let this nomination go to a vote without a knock down, drag out machine gun fight with the Republicans.
Now take a breath and ENGAGE!!!
1
Ms. Ocasio Cortez is the new face of progressive, clear, democratic leadership. I'll not be voting, campaigning, nor donating to the "middle way" anymore. I have for years.
This is what happens when people show up and vote.
1
Very perceptive article. I'm glad the Obama administration and Clinton campaign were too arrogant to take your extremely insightful advice.
1
Democrats, and unaffiliated moderates need to realize that the American political system has been gerrymandered beyond redemption, and is so distorted it gives the rural and semi-rural minority a lock on power. Time to start planning a viable smart secession strategy with foreign powers who hate and dislike Trump (France, Germany, Canada and possibly UK as well), so we will have the military power to leave this dysfunctional Union. California itself is the world's 9th biggest economy, if it and the entire solid Blue West Coast and North East seceded together, Rump Trump America could not prevent it. Seceding states would join Canada, much closer to their values than Rump-Trump America. The new enlarged Canada will take over from the US as the world's superpower, Rump-Trump America will degenerate into a third world country.
The Democrats need to play hardball and play to win. They should learn the lesson from their pathetic 2016 campaign and run against the Republican party's systematic, macro "war on women," not just against Trump's personal war on women.
A "Coming Soon to YOUR Neighborhood: Back-Alley Abortions" ad should become the 2018 equivalent to the famous "Little Girl with the Daisy/Mushroom Cloud" ads that effectively sank Goldwater and the GOP in 1964.
1
Now begins the long dark night of the American soul.
You are asking young progressives to grow up faster than their tribalism will allow. My generation needed WWII to open its eyes. Nothing is permanent. Once they adjust to the impact of the internet and develop a need for critical thinking our grandchildren may yet produce statesmen. Mueller would have to produce some bombshell to shortcut the process.
Actually, the argument to wait for the election is also moot. This is the most disadvantaged Senate field that he Democrats have faced in years. Odds are that the Republicans will have _more_ votes after the election. As the Chicago Tribune pointed out, the Republicans probably already have those votes, because some of those Democrats will forfeit their seats if they vote against Trump. Delay is not a winning tactic.
I think one option that should be on the table is a re-enactment of 'Lysistrata' on a nationwide scale by women and child-bearing age: if the legislature touches our rights to decide about our health care you, dude, will sleep on the couch for the foreseeable future or until that legislature comes to its senses! Does anyone want to imagine the ensuing outcry?! Will the GOP try to get around this by electing ALL senior citizens to the assemblies? Surely those legislators would like to have grandchildren, wouldn't they?
3
I woke up the morning after Justice Kennedy had announced his retirement, and I "knew" what had happened. Something about his demeanor after announcing his decision triggered in me the thought that he was somehow pressured into retiring. It didn't take much further thought to come to the conclusion that Kennedy was being sacrificed to enable a more consistently conservative replacement to be appointed. Later on in the day, news reports began to speculate that our president had indeed somehow influenced Justice Kennedy to retire.
More and more, as time goes on, I become pessimistic and , to an extent, frightened when I consider what could happen to our country if this kind of leadership were to continue for the requisite 8 years in office. I put my faith in the current investigation being conducted, and the upcoming elections to interrupt that process.
4
I hope the Democrats focus on core issues, on the reasons rank-and-file voters have a stake in Supreme Court nominations. To wit, such issues as trans persons and the bathrooms they may use or gay couples and wedding cakes can't be front and center.
Money in politics, voting rights, worker rights, right to an abortion, protecting the environment, fighting discrimination based on race -- these have to be the issues Democrats stress.
There are a multitude of good causes, which means the Democrats have to choose from among them which ones are most likely to resonate with the most voters.
3
Just because you disagree with the results of a jugement doesn't make it incorrect. It can be frustrating to support laws that at its face seem so common sense, so fair and so morally right, but those are the judgements that are often so subjective. Its the courts job to make sure they follow the rule of law and the constitution as best they can and in that regard it does vary and is on a sliding scale leaning left and right.,, if we disagree, then find another way to get your results. However, it is dangerous for everyone to delegitimize SCOTUS.
"It is dangerous for everyone to delegitimize SCOTUS."
Which leads one to wonder why Republicans have been so diligent of late doing exactly that.
We have a Supreme Court now in thrall to conservatives, money, and corporate interests, willing to subvert the law to achieve their evident ends.
There is developing understanding afoot that our courts offer no relief to any but the wealthy and well connected. We are not far from the day when we will see this growing disillusionment palying out in the streets.
When Harry Reid decided to employ the nuclear option and get rid of the 60 votes needed to confirm lower level judges, he set the precedent for McConnell's use of that option for Supreme Court nominees.
Of course we will see the usual attempts to get the nominee to announce how he or she will rule on any given issue and the refusal (as it should rightly be) of the nominee to answer such questions played out in the coming months. It will take a strong, circumspect individual to withstand what is coming. What should be utmost is that the person chosen has a clear grasp of the law and the ability to think and articulate clearly that understanding.
1
I don't think any modern President until now has openly made someone's position on a particular legal issue his criterion for choosing a Supreme Court justice. Any justice so selected should avoid participating in cases raising that issue, and on any lower court would be required to do so. No decision on which such a person cast a deciding vote could be considered legitimate, nor should it have any weight as precedent. Even the majority that issued the Bush v Gore decision had enough shame to indicate that their entirely political decision had no effect as a precedent. The President has a right to weaponize his selection of judges, but whomever he picks should have enough respect for the rule of law and the legitimacy of the Supreme Court to behave in an ethical manner.
4
It's the message the Democrats espouses. Or I should say the lack of message.
We hear their voices, but all they say is what they want, not what Americans want.
Democrats speak for illegals, to the detriment of citizens who have been footing that bill for way too long. Most advocate abolishing ICE. Why not the police while you're at it.
Democrats have no message about the economy. This one Queen's socialist has one: give everybody a government job.
Democrats will keep on losing, I wonder why.
1
I'm sure you are right that Democrats have not delivered a compelling message about the economy. But my post was about the rule of law. do you think that if we destroy our institutions, including the Supreme Court, the economy will be better off?
No new news here. But sure, let's get the Dems fired up for another fight they can't win.
Better to concentrate on ending gerrymandering and voting restrictions, and winning back the Congress. Then we can legislate as a defense against a radical ring-wing SCOTUS.
The Supreme Court is already lost. If not now then when RBG retires. The battle for America's soul must shift to congress and the White House. The legislative and executive branches are the branches of government that acts. They are the critical branches of Government SCOTUS only sits in judgement of those actions after they have already happened.
Use the loss of SCOTUS to drive up democratic voter motivation to take back the house and Senate in 2018 and the White House in 2020. Then we can begin the long work of taking back the SCOTUS from these Conservative Activist Judges.
The crowning absurdity of the American legal system must be that the power of "judicial review"--letting the Federal Courts and ultimately the Supreme Court void laws passed by the elected Congress--is itself nowhere in our Constitution! It was simply a power the Court declared itself to possess.
"Only Parliament can repeal a law passed by Parliament" was and is the ancient, primal standard in the UK, from whom our law system evolved.
Why must we Americans grant the last deciding word in our political system not to politicians answerable to the people in elections for set terms but to appointed for life judges?--the least democratic aspect of our whole system?
2
I'm not sure this analysis is correct. It appears to me that the Republicans now face a dilemma. Their Evangelical constituency expects a candidate that will ensure the prompt overturn of Roe v. Wade. But that outcome is politically toxic. It's a galvanizing issue only for a narrow subset of the voters. Expect the Republicans to nominate an obvious non-starter Candidate A and then use Democratic opposition as a bludgeon to set back chances of a turnover in the House. Once the dust settles, they will put forward Candidate B, who they know will do a technical punt on Roe v. Wade - thereby simultaneously maximizing damage to the Democrats and dodging the bullet of making abortion illegal across the land - which would, of course, create misery, chaos and gross political pain for them. The correct move for the Democrats is to immediately accept Candidate A, and let Trump and the Grand Old Plutocrats eat the consequences of what will be the most unpopular supreme court in American history. In other words, don't take the bait. Once the pain inflicted by the Republican Party becomes serious enough, power _will_ change hands, and there will be a great reckoning with this dark period in American history.
1
It is common amongst the right to attribute poor job histories, poor learning in school, poverty, alcoholism, drug abuse, family violence, juvenile delinquency, and petty criminal behaviors all to moral failure and weak characters. The role that want and hopelessness from a lack of material resources to enable people to improve themselves and the distress that this causes is entirely missed. Amongst the poor the lack of money and of sources of money makes the least of challenges, a sick child or an auto breaking down the end of a new job. People who feel hopelessly distressed or depressed will self medicate to escape. Embittered people will strike out at others or steal from others. It is not uncommon for unemployed people to develop dysfunctional families with children who are so unhappy that they cannot learn and may disrupt the classes they attend. There are people who are just beyond help but not all and not most. Simply dismissing them as poor people is not fair. People in need should be provided with what they need when they cannot provide for themselves.
If you think can't happen in your lifetime when hard earned rights and freedoms can't be rolled back, think again. The Right craves absolute domination and control over our daily lives. A truly free society scares them. Where the LGBTQ community have the freedom to marry whom they love. Minority groups are treated equally under the law. Women having the freedom over their own bodies. If they could roll the clock back on the 13, 14th, and 15th amendments they would. The Right only wants freedom for themselves and no one else i.e the freedom of tyranny over others. The supreme Court is only good or as bad the judges that are appointed to the bench.
3
Remember: the Constitution says nothing about a right to vote. A radically conservative Supreme Court--you know, the guys who swore fidelity to the doctrine of stare decisis" only to betray their sworn testimony in confirmation hearings (Thomas, Roberts, Alito, Gorsuch plus Trump's hack)--could rule that "the consent of the governed" could be satisfied, not by voting, but by polling. (Of course, in GOP hands, that statistical sampling would be OK, but not for the census.)
1
Democrats, as usual, will cave in and theorize why they just could not vote for "her". They will cave again in the belief that it is better for them to win re-election to their seats than oppose Trump, e.g. Joe Manchin.
So do not expect anything from the Democrats. They just do not have it in them to do battle.
5
"If Democrats and liberals want to choose a date to begin caring again, Nov. 6, 2018, would be a good day to start."
No, a good day to start paying attention to the power to make presdiential nominations (to the Supreme Court, the lower courts and all federal appointed positions) would be -- TODAY.
"No Drama Obama" never "took it to" the Republicans. He let McConnell roll him. McConnell did that TWICE in 2016, once with the Garland nomination, and a second time by disagreeing that a public announcement that the Russians were attmpting to illegally influence the election should be made.
Hillary Clinton ran an INCOMPETENT campaign, never taking out ads that attacked Trump for his terrible business practices.
HRC ran a campaign along the lines of Martha Coakley, here in Massachusetts (who LOST the 2010 special election to fill the remaining term of Ted Kennedy's Senate position to non-entity Scott Brown, and then lost an election for Governor of MA).
https://en.wikipedia.org/wiki/Martha_Coakley#2010_U.S._Senate_campaign
When the other side makes clear that they have no intention to "play fair" and will do whatever they can to win, we need to do the same.
Fight fire with fire. Otherwise you are just conceding the battle. You do not win a fight with a person who deliberately ignores (or breaks) the rules if you hold yourself to a "higher moral standard" of following the rules that they ignore. If they break the rules, the rules are gone, off the table. PERIOD.
2
For a generation, Democrat leaders have focused on compromise and rationality when they have been in power. Bill Clinton worked with Newt Gingrich to gut our welfare system. Barack Obama created a twisted, misshapen
healthcare "reform" law that has been easily picked apart by the Republicans now that they rule the roost. Democratic Party leadership like Hilary Clinton and Nancy Pelosi continue to speak as if they were dealing with a rational reasonable opposition, when we know we are fighting both greedy and anti-democratic radicals on the far extreme of the Republican Party. Workers are losing ground, no longer able to easily unionize and fight corporate greed. Our Supreme Court is on the brink of become the most right wing group since the depression. Big business owns us. it may be late in the game but either the Democratic Party, or another more progressive party must stand to draw some clear, unwavering positions that middle and lower classes can support. We has lost our democracy, but we can still get it back!
1
I appreciate Michael Tomasky's piece. It puts the onus squarely where it should be. This has always hinged on what Democrats have not done. Republicans have only ever done what they said they would do, and they have fought aggressively, often unethically, to achieve their ends. Democrats, by contrast, have shied from the fight, and that includes two presidents and many senior figures in the House and Senate. They have preferred "the high road," which is to say the losing strategy, because they didn't have the stomach or cahoneys or whatever to actually get dirty for something they said they cared about but couldn't be bothered to lose skin. And that's where we are. Anyone who has ever taken a course in game theory math will understand this. The most aggressive strategy usually wins. Ask yourself who has been most aggressive and most committed; then ask yourself why you're surprised the Republican Party finds itself where it is now. It took them forty years, but a righteous electorate, hypocritical leadership, and amoral president are about to do God's will, but they got here because Democrats lacked the sense of urgency to put up an equal fight. Want to know why so many people are angry at the Democratic Party? It is partly because many Americans feel like their party abandoned them. They have a point.
2
The Democrats haven't played hardball in a long time. It boggles the mind. Its as if they think comity will return if they just play nice while the other team eats up the field.
1
For all the fervent Bernie supporters who wouldn’t “lower” themselves to vote for Ms. Clinton, congratulations. Now we and our descendants will all really suffer. Supreme Court Justices service for many years and can influence the future for eons. The future is bleak.
1
I have one other strategy: 1 million or more Americans encircling the US Capital Building to prevent Senate Republicans from holding hearings and voting until after the new legislature is seated in 2019. Mitch MConnell may have illegally blocked President Obama’s nominee. It’s time for millions of Americans to block Trump’s nominee. Let the Cold Civil War begin.
3
This is just another “hold your nose and vote for the neo-liberal who can win” opinion. In other words, “be realistic, liberals. We are on your side, but if we don’t vote for moderates, we will lose.” Balderdash. The leading icon of that wing of the Democratic Party, and that kind of thinking, couldn’t beat Donald Trump. Al Gore lost to George Bush. How many bad does it have to get before the Democrats stop derogating its progressives and act on some their principles?
Democrats lose all over the country because they cannot even articulate what Americans want let alone work for those goals. The main reason is because the Democratic Party's leaders don’t believe in progressive ideas, and it shows.
2
Mr Tomasky says that the time to play hard ball was 2016. imho the time was 12-12-2000. If I remember correctly, Professor Alan Dershowitz called, in the pages of The Nation, for the five justices who decided the election for president to be impeached. But there was not, I think, a single protest on the streets of Washington.
SCOTUS is the Great Untouchable, because, I guess, that's what the writers of the Constitution intended it to be.
An UNINTENDED consequence was a judicial coup d'état. Argued (as was the recent ruling on the travel ban) on very specious grounds; and so bizarre that it was explicitly stated that it was not to be used as a precedent. And Justice Ginsberg, bless her, omitted the word "respectfully" from "I dissent."
Half of Americans DO NOT vote. That people don't inform themselves and don't vote is unconscionable.
1
Mr Tomasky, you are going to continue to lose. You will at least until you understand the nature of those American citizens you appear to believe are your enemies.
You write: "They, directed by their political leaders..." That isn't who we are, sir. We are individuals who are perfectly capable of making up our own minds using our own free will.
In my experience - and I once was where you appear to be - the ones who behave as if "directed by their political leaders" are those on the Left. How else to understand the kind of monolithic rage directed at people like me on the Republican side?
How else, indeed, sir?
1
To use the parlance of our times, the Republican Party has seemingly made some kind of ritual decision to drink the Kool-Aid.
As a registered Democrat, with no real partisan affiliation one way or another, it’s far more enraging that the GOP has hijacked the concepts of both Republicanism and Conservatism in a last ditch effort to salvage the diminishing white demographic majority.
Polity informs policy. Legislators write laws (occasionally, at least). We all act in the manner proscribed by our political leaders as long as we are obeying the law.
Fight to the bitter end, yes. But that means *really* fight. Most senate business cannot go on without unanimous consent or a roll-call vote. I've been told Committee meetings, such as the Senate Judiciary Committee approving a candidate, do not have a quorum to meet without at least one member of the minority party. DON'T COOPERATE! After they stole a seat, slow down or shut down Senate business in every way possible until you are assured that a vote will wait till new Senators are seated next Jan. or until a pro-Roe-v-Wade nominee is named. Don't pretend to fight while cooperating and going along. STAND UP! SLOW IT DOWN OR SHUT IT DOWN! For once in your lives, Democrats, do something to inspire us.
1
This is wonderful news.
America just keeps winning and winning.
1
The American people took away all the power from the Democrats. It is punishment for ACA and for the rigged nomination of Hillary among other things. It is the way it is. If Democrats want to regain power they must listen to the American people. Not just people in New York and California but in the swing states too. There especially. Every Latino in California and every African American in New York could vote Democrat in the next presidential election and the Party would still lose. It has to be more than identity politics like this write seems to endorse. Haven't we learned anything?
1
I think a more apt title would have been "The Right Has Stolen the Supreme Court. Now What?" Mitch McConnell has practically been given a free pass for, what is perhaps, the most brazen display of the GOP's disregard for the citizens of the US. What he did was not normal. Justices have been put in place much later than 10 months before the end of a president's term. McConnell manufactured the narative that the voters should decide in the next election. The voters did decide. A plurality voted for the Democrat. However, some 80,000 votes over 3 states allowed the Republican to win the majority of electoral votes. McConnell will not apply the same standard this time around because is does not suit him. He is a prime example of partisan politics at their worst. His pride in the wrong he caused make him the worst brand of traitor to law and order.
1
This column brought tears to my eyes. What seemed like small errors have created one of the greatest disasters in our history.
It is time for liberals and Democrats to shout out their beliefs. The majority of the country shares them. That shouting may be the one positive legacy of Trump.
One thing the Republicans know how to do and that's fight and the Dems can take a page out of that playbook. They invariably back off but why? They should have more power behind their convictions like the Republicans yet they do not. They don't get angry enough; moreover they should get angry just on the basis of political push back. They should get angry about being outmaneuvered and bullied and they should get angry about defending our democracy from a president who fosters lies and a party that stands behind him even at the expense of their own integrity. Yet in light of all this the Republicans manage to muster up all that bluster and blabber without blinking an eye. Amazing.
1
The Republicans have been mean since 1964 (Barry Goldwater’s “extremism in the defense of liberty is no vice.”). They got meaner in 1968, covertly—so they thought—adopting white resentment to give Richard Nixon the White House on the strength of the Southern Strategy that was actually hatched in 1948 by Dixiecrat Strom Thurmond.
The gloves came off in 1994 (Newt Gingrich’s “Contract With America”) but the real unmasking came in the Reagan presidency. The party, already on the far right move after 1964, declared itself with Reagan’s absolutely reactionary Supreme Court appointment of Antonin Scalia and his nomination of William Rehnquist to succeed Warren Burger as Chief Justice.
In the meantime, as the Democrats wailed, wrung their hands and gnashed their teeth, the GOP consolidated its electoral gains, the telling stroke being Bush vs. Gore in 2000. Because of that, we have Samuel Alito and the current Chief Justice, John Roberts, both appointees of G.W. Bush.
The Democratic Party has largely been ineffectual, ceding 2004 to W. without really fighting for John Kerry. Republicans, who claim allegiance to the colors, trashed a true war hero and, in spite of its visible, incontrovertible hypocrisy, gambled and won, picking up the winnings and the kitty. Democrats lack the playing-for-keeps mentality that has floated the GOP for half a century. The GOP never had a genuine vision or platform outside of fear and hate.
Time for the Dems to fight dirty—they’ve seen how to do it.
1
The Presidents Club will never include trump. So where are they now?
Back during the election there were many democratic leaning voters who could see no difference between Hillary and trump and apparently saw no need to vote. I wonder if they have seen any difference yet.
It would be nice if there seem to be a prospect for the democrats winning much any time soon but it seems unlikely. They may win the House and a few governorships in 2018. They might possibly have a shot at the Presidency in 2020. But to enact real democratic legislation (turn things around) the democrats would need to control the House, the Presidency, and have a filibuster-proof majority in the Senate. It will probably be twenty or thirty years before that all happens.
Democrats love to blame their troubles on the gerrymander, but they need to remember that the gerrymander does not affect the U. S. Senate (which democrats have little prospect of controlling) or state governorships (about 2/3 of the governors are republican). There are also several House seats where the state has only one representative (such as Montana) but most of these are also in republican hands.
We democrats need to come to grips with fact that we are not winning elections. Mitch McConnell can do what he wants to do because he has the votes in the Senate to do it. People comment about what the democrats can do to the hinder the supreme court appointee. Unless trump makes a really dumb appointment, the democrats won't be able to do anything but make noise.
1
You are wrong. Plenty of people did see the difference, but resented the DNC shoving a deeply disliked candidate down our throats. The lying, cheating, and "triangulating", coupled with tone-deaf, stupid issues like PC, doomed the entire thing, and will continue to do so as long as such tactics and deafness continue. I am tired of voting for the lesser of two evils, and clearly a large portion of the electorate is as well. You'd all better start listening.
Stock market advice: Buy uHaul, as Americans pack up and move to a state that reflects their morals and interests.
1
I can understand the angst about nominating a justice who rules based on what the law and Constitution *say*, and leaves it to the people’s elected representatives to change the content. Shocking!
1
We are already up the proverbial creek without a paddle and I don't see the Democrats doing one thing about it. Bill Clinton and his policies turned the Democratic Party into Republican lite and they abandoned everything the Party once stood for.
2
A situation like this was the reason I couldn’t sleep the night Trump was elected.
4
The only question we need to ask ourselves is this: when Obergefells, Roe, Casey, Lawrence and the host of other progressive decisions are gone, when we are back to the 1950s, then what? What is our response? Vote in gerrymandered elections? March? Wave banners? What?
2
Time to fully embrace schadenfreude as Trump’s supporters slowly realize that they’ve likely done more damage to their own interests than they possibly could have imagined. Winning bigly.
It is one of the frustrations of our age that many Democrats just don't vote unless they see a candidate that represents their own narrow constituency or personal local interests. It is heartbreaking, because these same Democrats have suffered mightily under Trump. The specter of Hispanic, African-American, Asian-American or LGBTQ citizens not voting in 2016--or God forbid actually voting for Trump still makes my heart sing, and makes me want to run out in the streets and scream: What are you folks thinking! This is what happened in 2016.
Many of us who care about our nation will probably be OK even under Trumpian fascism, but it will be the cries of our disadvantaged and discriminated-against fellow citizens that will keep us awake at night. And if Democrats don't vote in huge numbers in 2018, we will stand and weep for our poor country where people couldn't be bothered to protect themselves and their neighbors.
3
May I remind the readers here of duplicitous and possibly treasonous role that Mr. McConnell played in keeping the Russia conspiracy investigation secret until after the election? Without his help, Trump would not have been elected, and the right would not have, as reported here, won the Supreme Court. I quote an article from the NY Times today:
"Mr. McConnell’s other form of aid for Mr. Trump was more hidden. As The Washington Post reported ... Mr. Obama had been prepared that September [2016] to go public with a C.I.A. assessment laying bare the extent of Russian intervention in the election. But he was largely dissuaded by a threat from Mr. McConnell. During a secret briefing for congressional leaders, The Post reported, Mr. McConnell 'raised doubts about the underlying intelligence and made clear to the administration that he would consider any effort by the White House to challenge the Russians publicly an act of partisan politics.' The Obama administration kept mum, and voters had to wait until after Mr. Trump’s election to learn the depth of Russian involvement."
3
Liberals, conservatives, whatevers should in the short term try to ameliorate the damage trump and the republicans are doing to our country, but in the long term we all should be trying to fix the constitution: supreme court term limits, non-partisan selection of judges at all levels, non-partisan redistricting, the end of the electoral college, nationwide guarantee of robust voter rights, democratic rules in congress. The reason we are in this mess is because one, the republicans are amoral, anti-democracy powerseekers, and two, they have taken advantage of flaws in the constitution to rig the system.
1
This column, of course, dovetails nicely with Thomas Sugrue's piece on "civility" in civil disobedience today.
Part of the problem with Democrats over the last several decades is that they try to go high when Republicans go low--and, since, apparently, the average underinformed individual responds more to gut than to head, it hasn't gotten them very far.
So it is time for Democrats to go for the gut, too. Fight hard, and even dirty, when the need is there.
The other side doesn't play by any rules of civility; it doesn't care if it can be accused of lacking manners. It only wants to win. For the sake of the rights and lives of so many that the reactionaries want to deny rights and lives to, we've got to learn to fight fire with fire. The powerful never give up their privilege voluntarily--they have to be scared into it. Time for progressives to get scary.
5
Just imagine people thinking like Sessions or Pence becoming judges of the Supreme Court.
This opinion piece assessed the situation concisely. It is also thankful-worthly informative from its depth under a light-touch surface in its style. In addition, besides the timeline drawn by the writer, lots of events have been evolving recently, the speed of which can be hardly unnoticed by any mind. ***** I personally suspect that there might have been deal-breakers at some point between Mr. Trump’s ending the family separation at the border *and* the Travel Ban upheld at the Supreme Court. My conviction is such that there are usually many things going on behind or underneath, without the public’s knowledge. ***** I am also newly convinced that Mitch McConnell is a true character. Unlike their counterparts, Republican politicians usually have not much charisma laden star values; so consequentially, their distraction level with the populace hits all time low. Plus, for the same reason, their strategies can be a long run in a low key guise. Those are so far summaries of op-ed and articles on today’s NYT which I read on the relevant. ***** The definition of marriage and abortion were two crucial issues, I observed, at the Presidential in 2016. Conversely, once those are settled favorably for R, Mr. Trump might lose his support base. Also, except his extreme supporters, many other supporters respect his presidential authority as far as it is constitutional. If needed and safe for the party, even McConnell would detach himself completely from Mr. Trump. This is my guess.
This is just a poor attempt to make people feel better. Elections have consequences. The Democratic Party shoulders all the blame here for a rigged attempt at coronation during the last election. Sanders could have won the election. That is the argument to be made, not some tripe about nominating a Latina judge. Seriously? You think a judge nomination being blocked would energize voters? The blatant anti-immigrant rants targeting that demographic wasn’t enough, so I doubt the nomination would matter.
Democrats need to win elections. Period. The party suffered defeat after defeat at the state level for 8 years under Obama. Karl Rove published his blueprint as an Op Ed before the state by state campaign started. Democrats were inept and failed to counter. Now, you have an internal fracture between the liberal and moderate Democrats. A socialist won in NYC. Maxine Waters is basically making campaign adds for the Republicans.
Pick a message about jobs, health care, and the middle class. Support simple, defined legislation to advance those goals. Avoid “resist” and identity politics. Stay away from gun control and abortion until you win. Those issues only mobilize the people that already (sometimes) vote. The large coalition that Democrats are pinning hopes on often fails to vote.
This is a path forward. All of the optics of delay and such is just wasted energy while Trump continues to deflect criticism and controversy without consequence.
2
My liberalism left the building on election day. If people wish to vote (or not vote) against their interests, I won't lose sleep.
Kennedy leaving doesn't alter much. He's a right wing hack by any standards, a mediocrity, like his replacement. A dime a dozen.
Our children finally will curse us for complicity in the madness. They will wonder how easily we were fooled.
The ultimate bitter irony is that we can never say, courtesy of the age of information, WE DIDN'T KNOW.
Excuses are as extinct as dinosaurs, and a lot less interesting.
What happens if abortion and gun rights are no longer at stake for Republicans? Does the Republican party lose its top two rallying cries? Will rank and file Republicans then consider their own self interest with regard to health care, environmental protection and so on?
1
Time to play as dirty — and as legal — as the GOP. If a blue wave sweeps both houses of Congress, then we need to impeach Roberts and Alito for lying during their Senate confirmation hearings about their respect for the doctrine of “stare decisis”. (Just the latest and obviously egregious example was the Janus decision, which overturned a UNANIMOUS earlier decision in Abood.) Their behavior since their confirmation plainly demonstrates that they have no such respect. Gorsuch didn’t have to bother with that charade after the McConnell Godfather fix was put in for him.
3
I'm crying because I'm laughing so hard!!
Democrats have always cared about the Supreme Court, it seems to me. Thomas was controversial back then because of Anita Hill. But it was another issue, his conservatism, and how he was seen in light of the accusations of sexual harassment. Tore the black community apart, men as well as women. Bork was rejected because he was seen as too conservative.
Now do the party leaders convey this information to the rank and file, the importance of presidents and Supreme Court justices?
Or is it something known only among the well-read and educated, including lawyers?
All fine suggestions, Mr. Tomasky. But where are the columns that tell us how we can try to live our daily lives under a fascist regime? How can we simply go about our business with the wholesale dismantling of our Constitutional rights and protections?
I ask these questions because even if the Democrats do everything you suggest, it is extremely likely they will lose anyway. They might possibly take back the House in November, but no more. As for trying to educate young voters about what's at stake? Even they will now live decades in an America with fewer Constitutional rights than we had, even if they vote every two years for the rest of their lives.
Sure, Supreme Court justices might sit on the bench for twenty-five to thirty years, and then either pass away or retire. But what the public needs to understand is that their rulings last much longer. There were some sixty years between Plessy V Ferguson and Brown v Board of Education. The justices who decided Plessy were long dead by the time a new Court heard Brown, and yet Plessy was the law of the land until 1954. And Korematsu was good law for over seventy years until this Court decided to throw a few crumbs to human rights advocates.
Here is the column I'm waiting for - the one written by someone whose family had no other choice but to live in a fascist state and who weren't able to leave. I want advice from them as to how to simply get by each day. Because that's all we will be doing, at best, for a long time.
3
If Bill Clinton had kept his fly zipped, President Gore would not have invaded Iraq. He would not have given enormous tax cuts to the rich. He would not have appointed Justices Roberts and Alito to the Supreme Court.
For want of a nail . . . .
1
All the strategic machinations proposed here are devoted to one end: creating a more liberal -- and thus more intrusive -- Supreme Court. I wish Times' readers would recognize that the Supreme Court should not be the supreme lawmaker under our system. A more conservative court means a lessening of federal judicial influence... a lessening of federal power and concomitant empowerment of states and the people themselves. That's a good thing.
2
I'm looking for one sentence in your comment that's not completely wrong.
Only yesterday the so-called conservative majority nullified longstanding law in two dozen states requiring workers whose wages are determined by collective bargaining to pay union dues. How exactly is that lessening the federal role and empowering the states?
Before you repeat their specious claims about free speech, let me point out there are any number of mechanisms for funding those unions that the court wouldn't have touched, the effect of which would be the same. For example, the state could levy a tax on all public sector wages, and pay those monies per capita to the unions. Also bear in mind each of us every day pays taxes to support policies and laws we oppose. The plight of the public sector worker "forced" to support a union he supposedly opposes is no different, except that he can change jobs.
What this court has done repeatedly is support the powerful over the weak, the corporate over the individual. Hobby Lobby invented corporate religious rights. Citizens United cemented money-as-speech, the basis for yesterday's decision. Previously it curtailed the right to sue for wage discrimination by holding, ludicrously, the the statute of limitations applied to the time of discrimination, not the time of its discovery. It's ok to cheat if they never find out, right?
Abstractions about what "conservative" means won't help you understand the effect the Supreme Court has. Deeds, not words.
4
Over the last 30 years, the Republicans have done an excellent job of highjacking the entire governmental system, from local governments, state governments who gerrymander, and now the court system. The only way out is to win elections somehow and legislate, legislate, legislate. The electoral college system will make this very difficult but everything the liberals stand for is at stake. By limiting the state deductions, even the federal tax bill has made it more onerous for liberal states to fund their own state and local governments.
2
If Democrats want to make this an issue in the mid-terms, there’s a simple question they should ask of their opponents: “If the Supreme Court overturns Roe v. Wade, would you vote to outlaw abortions?” Republicans will probably try to answer this question with the Paul Ryan dodge: “That’s a hypothetical.” The response to that dodge is also simple: “Overturning Roe v. Wade has been a plank in every Republican platform since 1980. The Republican Party is on the verge of realizing that goal. Your party has had almost forty years to think through what you would do in that event. You owe the voters an answer.” Furthermore, this is not necessarily a state issue (another Republican dodge). There’s nothing to stop Republicans from introducing legislation in Congress that would effectively outlaw abortions. They’ve done it before and they will do it again.
6
Mr. Tomasky’s to-do list has the ring of victimization in it, and that’s why it will be ineffective. The right answer is effective and consistent political organizing and mobilization. If you take a long and hard look at why the Supreme Court has become the fulcrum around which the rest of American politics hinges, it’s because progressives have been unable to maintain control of state and local political machinery, despite the fact that Americans generally agree with them on social issues. Abortion, for example, is largely an issue under local control. What happens at the Supreme Court level would be irrelevant if people who support abortion rights would show up consistently and vote their preferences in state and local elections. The same thing goes for gay rights.
Let’s not forget that only a fraction of the people eligible to vote actually do. That means that even in “red states,” there are often more than enough people who haven’t voted in the past to make a difference in the outcome. Don’t believe me? Ask Sen. Doug Jones of Alabama.
And finally, there are now more people between the ages of 18 and 30 than there are Baby Boomers. These youngsters are overwhelmingly progressive, they tend to be anti-materialistic, and they detest racism in all its forms. These kids can save us. But we progressives need to wake them up and get them to work with us.
Democracy is the answer to everything.
7
Sadly, I fear the Republican steamroller has become an unstoppable juggernaut. The time to seriously pay attention to the Supreme Court was Bush's second term. His first term would have been nice but then....
2
We will continue to be an increasingly divided country, where the more liberal states will continue to be "elite" because we will continue to protect individual rights and allow all of our citizens to flourish as much as possible. We will protect a woman's right to choose to avoid more families being plunged into poverty, and we will support a fair education for all children that includes paying teachers well enough that the good ones stay in the profession. As for the more regressive states... they will watch from the sidelines as their economies continue to shrink and they are left increasingly dependent on the federal government trying to siphon funding from the "blue" states. They will have increased teen pregnancies, increased mother and childhood poverty rates, poorer education outcomes and find themselves left increasingly behind as the world moves on without them.
To be honest, I'm tried of trying to save the red states from their own worst inclinations. Maybe it's time to let them have to live under the policies dreamed up by the representatives they insist on electing. The rest of us will carry on without them.
7
Clearly you don’t understand what’s at stake. They’ll all be red states, but not by choice. Wake-up!
We Democrats are much too quick to endorse ignoring the rule of law these days, simply because things are going poorly for us. What possible legal or constitutional precedent exists for upending the president's longstanding right to nominate a Supreme Court justice simply because he is under a cloud of suspicion? And don't tell me that it's ok because the Republicans would do the same thing. As we learned in first grade, two wrongs don't make a right.
2
Those who make the laws (McConnell) control our country!
Democrats are not writing or talking about ignoring the rule of law. That is your perception.
If you take the high road in this case, you WILL be run over!
Back in 2016 I told a friend that I would vote for the Democratic nominee no matter who was running on either side because the main thing that mattered to me was Supreme Court appointments. My friend (a Republican) said "why? The Supreme Court is not partisan. "
Yeah, ok.
7
The article is right on for the Democrats. Schumer and Pelosi need to go but we don't need a Burney person either. Give me a person with integrity, character, vision and high energy who is not afraid of the Republicans and reflects middle of the road or middle left.
7
The Court has been ruling consistently for corporations against ordinary folks and government for a long time now, and the problem is that nobody pays attention. It's all too down in the weeds for most people. Yet bit by bit the ability of corporations to run our lives is being reinforced. I suppose is the answer is indeed to focus on some big issue like Roe, but that smacks of single interest politics and doesn't serve the need to educate people on what the Court is really doing to working people broadly.
7
Let me echo the idea that Supreme Court Justices should not serve for a lifetime. Eight or ten years would seem to be sufficient. And I would make another case for this. Consider the enormous imposition on a Justice - not being allowed some pleasant retirement years for fear of who will be replacing you. In a real sense, an appointment to the Court is a death sentence.
By setting the terms as lifetimes, we establish a quasi-royalty. And for all those skeptics on the right, Breyer and Kennedy should serve as reminders that you don't always get what you expect.
Perhaps it is time to change Article 3 of the Constitution. Times change and so should the justices.
6
Thank you, Mr. Tomasky, for writing an article that doesn't just bemoan the desperate straits we're in. We all know that. Thank you for offering a positive take, a way forward.
8
If the progress done by the more liberal supreme court was done using solid interpretations of the law, then there is nothing to worry about. Their decisions will stand in the future. If the progress was done by convoluted or controversial interpretations of the law, then shame on them. This means that they were using the law to advance personal agendas because these are not elected officials, so they do not and should not represent the will of people.
6
The concern is the more conservative court will not use solid interpretations of the law... it will use convoluted interpretations of the law and use the law to advance personal agendas.
17
We don't have a Supreme Court anymore. The GOP's betrayal of the Constitution by refusing to acknowledge Obama's right to even nominate Garland has rendered it illegitimate. Now, it's nothing but a right-wing club for beating America into submission. We no longer have the responsibility to accept this former court's rulings; in fact it is our duty as citizens to defy it in any and all ways possible.
21
The writer suggests a historical counterfactual but there are others; the Dredd Scott decision led to abolition a few years later. Would slavery have continued longer but for the Dredd Scott decision? Perhaps it's good for the left to have an extreme right wing Supreme Court. It mobilizes progressives. What will happen in a few years when the Supreme Court overturns Roe v. Wade? Will that be the end of the Republican Party? Isn't abortion already practically illegal in red states anyway? It's time for progressives to mobilize at the ground level, mobilize at the local level, legislate, neutralize the Supreme Court with legislation. Wasn't the Lilly Ledbetter Act a direct result of a right wing Supreme Court? wasn't that a victory for progressives? Let's do more of that.
16
A very perceptive and encouraging comment. Reversing Roe v. Wade would do little practical harm, since abortion is already virtually unavailable in red states, while it would energize, not just progressives, but the rest of us, the majority of Americans who think that abortion should not be illegal, the right to bear arms should not be an individual, sacred right, and corporations should not be in the business of buying elections.
23
I wish all the justices were required to be neutral. No party affiliation, not a conservative nor a liberal. Along with term limits of somewhere around eight years.
A judge should never allow their personal beliefs in the decision of the case over rule what the law requires.
20
I agree completely, but I wonder if you agree that the leaders of the FBI should be neutral as well.
1
It's only a one vote majority on the court for conservatives, so should Thomas decide to retire in 3 years when a Democrat will most likely be in the White House, that majority would swing to a liberal court.
It's possible.
6
POTUS Trump is likely to win again in 2020.
He could possibly have 2 more Supreme Court nominees before he leaves office if he wins in 2020.
1
The United States is becoming steadily more cosmopolitan and urban. Why should the highest court be packed with people whose views are the antithesis of the inclusiveness the evolving society values? It is a prescription for turning SCOTUS into an absurd, sick joke.
21
I am not convinced of the inclusiveness of the evolving society. It seems to me that they are inclusive of only the people that agree with them and reject anyone who do not agree with them. Makes for a good slogan to label these societies tolerant, but they need to prove that they really are. If you tolerate certain people only, the other side tolerate certain people only also, then the only difference lies in the list of people that they tolerate. Tolerance can be summarized in “love your enemies as there is no merit in loving your friends.”
1
The United States includes several states whose population is less than a good size city. I'm looking at you, Idaho, Wyoming, N. and S. Dakota. Yet each of these states get the same number of Senators as do California and New York. That's the problem.
There is a bigger point and a larger opportunity. At the heart of many of the conservative decisions is that the matter should be decided at the state level and not the federal level. Rather than rely on the 'we rule the roost' in Washington and thereby can set the rules, D's need to go back to more winning hearts and minds at the local level, including trusting more local decision making. Yes, it may be harder and the people in charge in Washington never want to cede their power and privilage, but Democracy is stronger when its local. Win at town meetings, in county government, and in state houses, especially given the likely mindset of the Supreme Court.
30
There are a lot of good reasons to win at the local and state level, but as an alternative to federal law it is horrible.
It presents the prospect of Balkanization of rights between the states where you are entitled to that right in one state and not another. Abortion, gay rights and a host of other issues that should be uniform throughout the states would instead be a patchwork of different laws in different states.
There are some things that are so fundamental and basic in a democratic society that they should be defined as such throughout the land.
This is the eternal conflict between those who visualize our constitutional framework in very different ways.
I would like to think that as a society we would always progress to more and more liberty and equal justice for all and not just for some in some states.
10
Don't focus on one, do both.
Right now we are a flyover country. Smarter political leadership will get us to interact and to engage more, and lead to increased understanding and empathy. The shrill sloganeering of both parties only further polarizes.
One point is D's need to adapt vs complain if they want to do more than feel self-righteous.
3
What will happen is that the DINO Democrats, who had dinner with Trump to be lobbied for their vote, will provide the votes necessary for Trump's candidate's nomination to be approved. That's even with a couple of Republican Senator's defections.
This is not complicated. The Republicans will bulldoze the process to a vote before the midterm elections and they will win that vote.
This is a massive, massive loss for liberal and progressive government for decades to come.
13
It might be a loss for liberals but it is a win for America.
It is quite sad that the appointment of a Supreme Court justice carries such importance. This means that the Court has too much power and has become too influential on American life. Of course, this is true of all national politics today. This is an argument for smaller government with less power and less influence. People have quite literally lost their minds over politics - James Hodgkinson, a Bernie Sanders supporter, tried to kill Congressman Steve Scalise and several other Republicans at softball practice just because he disagreed with their politics. This is a Supreme Court nominee - it is not the end of the world as we know it.
9
For a minority of the population - for white men - this is not "the end of the world as we know it" important.
It will be merely a continuation of the world they have created & ruled for centuries, one particularly constituted to be, at worst, pointedly favorable to themselves &, at best, tolerant of interests that don't seem to threaten their power. A world so 'natural' to them that it's contours are disappeared & they have the darndest time seeing how it holds others back.
For the rest of us - well, this does portend "end of the world" changes to our options and opportunity for human flourishing.
Only those living at the rarefied heights of privilege can shrug their shoulders over SCOTUS' composition. It must be nice.
The weight afforded to SCOTUS is quite unique in the world, as is the manner of its composition and the nature of tenure for those who serve on it. This makes it much more than a mere Branch of Government. And, in turn, this means that influencing who becomes an Associate should be a constant priority for the political parties. It seems to me that the Republican Party understands this and will do whatever it takes to get its partisans onto the bench, as was demonstrated quite conclusively in the case of Merrick Garland. The Democrats do not appear to have the same level of insight. They appear intent on gestures, on focusing on getting a more representative House of Representatives, as if this were the endgame. It isn't. The value of the House, and the Senate, derives from the actions it takes, and, in your system, in whether these actions, the legislation passed in other words, can pass the muster of SCOTUS. If, as seems almost inevitable, the Court will be reconfigured in a way that will present a major obstacle to any new or existing "liberal", i.e. people-focused, legislation, this skewed and short-sighted focus on diversity risks becoming a costly distraction. Indeed, if it succeeds, it will bring into the House a number of untested and non-connected novices who will be at the mercy of unscrupulous, dyed-in-the-wool GOP'ers, adept at exploiting procedure to get their way. In other words, the challenge for the Dem's just got exponentially larger.
4
What you say here might be true if the “experienced and connected” establishment politicians were consistently using their gifts in the service of the greatest good for all Americans. Unfortunately, largely due to the unbridled influence of Big Money politics of both major parties, it is not.
7
I blame Obama’s lack of strategic thinking for Gorsuch being on SCOTUS instead of Garland. His best negotiating strategy would have been to ask for much more than he was willing to accept, then negotiate down to what he wanted. Garland would be a Supreme Court Justice right now if Obama had begun by proposing a candidate on the far left fringe at a time when most expected Hillary to win. Republicans would have refused, but he could have compromised by asking them whom they'd accept. Bingo, Garland would have been on their list. Until the Democrats learn a little about game theory and strategic thinking, they won’t win close elections or get even their most reasonable proposals accepted.
22
McConnell disliked (I’m trying to be nice and not say hate here) the late President so much that absolutely nothing that the latter could have proposed would have been acceptable. Surely you remember his slogan of ‘one term President’? Besides, the he knew he had the joker in his hand when his party recaptured the House so he knew he could dictate what he wanted. No, I’m afraid that President Obama didn’t have hand worth the name to deal with.
1
Fact is that Obama never nominated Garland for SCOTUS. It never came to a vote.
McConnell made it clear moments after Scalia was pronounced dead that NO Obama appointee would be considered. In fact, Senator Hatch even publicly said an ideal candidate would be Garland, but Obama was "too liberal" to appoint him. He offers the Republicans a nominee far better for them than they would get under Hillary and they still didn't bite.
Don't blame Barack, he was a victim - Republicans were out to humiliate him one last time. Focus on the real enemy.
The problems with this analysis: first of all, there is no Democratic leadership. There was no Republican leadership before Trump. Political parties are not as organized or as unified as people like to believe. Republicans rally behind Trump because they see opportunity, and because opposing him will end their careers. But they can't strike a deal on immigration to save their lives, even with total control over every branch of government. There are a few points on which they all agree, but they agree on these points purely for the sake of opposing the Democrats rather than any adherence to ideology or principles. Democrats are even more scattered, encompassing everyone from socialists to "moderates" who stand somewhere to the right of Ronald Reagan. Democrats are already breaking off from the herd and supporting Trump, because politicians are opportunists with no real loyalties. The second problem with this article is the suggestion that there is still a battle to be fought. There isn't. America is now a one-party state. There will be no more meaningful elections, no more contested court seats, no more state rights and no more genuine political opposition to our Dear Leader. You could hop into your time machine and tell the Democrats to play hardball thirty years ago, but it wouldn't make a difference because the Democrats never had a Federalist Society. They never had a goal. They're just a compromise for us, the American majority, who are forever on the outside looking in.
19
Dennis, I recommend you brush up on your modern American political history, specifically on organized efforts to flip congress. The WaPo has a podcast, “Can he do that?” that is currently examining this very question. Highly recommended.
Elections are not going to answer our problems. Only dissolution of the union will. The Republicans have won control of all branches of the federal government and have successfully implemented the means to maintain power without the need to win the majority of the vote.
We need to separate this union. This nation cannot stand as it is and Republicans will not tolerate the needed reform to our democracy. We need to negotiate a break up of our union to prevent a brutal war.
13
Yes, yes, yes. America needs to divide. Divorce is necessary. Americans cannot get along. Spare the kids! Divorce!
Um, no. I hear you: things are bad. You know what it’s called? Democracy. Liberals need to come out and vote instead of treating voting as boring or blathering on about Jill Stein and Bernie when they should have voted for Hillary. Instead of a breaking up this union of ours that’s lasted for 242 years, let’s accept that we lost and come out and vote!!
Excellent article. For decades now, the Republicans have played electoral politics and the Supreme Court nominations as a blood sport and the Federalist Society has coldly planned the long game. Michael Tomasky is right, that the conciliatory approach by Clinton and especially Obama of meeting the opposition halfway has failed to moderate the winner-take-all cynicism of McConnell et al while it has offered little to inspire those on the left.
Trump and the Senate Republicans seek to appoint Justices with the dual criteria of promulgating a mendacious “strict constructionism” and of holding that seat on the Court for at least 40 years. So the dead hand of Trump and his politics will weigh on us many decades after his departure.
The temptation for the left is to be equally cynical. But maybe the problem lies in the degradation of the role of the Supreme Court and its legitimacy in the time of extreme partisanship. If we are to retain our constitution and division of powers, there must be a change in the manner and terms of the appointments of the justices: confirmation should require a supermajority, and the term should be fixed, say ten years renewable by the Senate. It’s insane that the only irreversible act of the Senate should be by a simple majority.
17
There are many excellents ideas posited here, and I also hear them from average Joes on a day to day basis. Ideas that could energize voters and provide direction for the party. Where I never hear these ideas is from Dem leadership. If journalists and average Joes and average Janes can dream up good ideas, it begs the question why Dem leadership can't. Or maybe it's that they won't. It seems more and more like that every day.
11
Having a conservative court means that they will more or less interpret the law as passed by congress whether the congress leans left or right. I feel they're also less likely to overturn previous SCOTUS decisions... so I am not convinced by Democrats eager to scare democratic voters (those that aren't already scared senseless by Trump) to polls because otherwise Gay marriage rights and abortion rights will be withdrawn. All a conservative court would mean is that each side will have to work harder at crafting law that will withstand a court challenge.
4
It's not clear to me that the "conservative" SC majority that we've been inflicted with is reluctant to overturn previous decisions, rather the opposite. It revisited and radically changed generations of understanding of the Second Amendment and it has done the same with labor law and with Citizens United.
Where it has proved conservative is in decisions such as enforcing the involuntary "arbitration clauses" that prohibit workers from combining in class actions.
When the SC makes blatantly partisan and cynical rulings, Bush v. Gore being the extreme example, it takes another step towards losing its legitimacy and threatens the whole structure of our constitutional system.
12
Have you read the rulings or actually listened to the arguments? Just because you disagree with the results of a jugement doesn't make it incorrect. I admit, it is frustrating to create laws that at its face seem so common sense, so fair and so morally right, but those are the judgements that are often so subjective. Its the courts job to make sure they follow the rule of law and the constitution as best they can and in that regard it does vary and is on a sliding scale leaning left and right. However, it is dangerous for everyone to delegitimize SCOTUS.
Supreme Court will have no legitimacy if most key rulings are 5-4 along partisan lines. It'll only be viewed as legitimate if justices regularly cross partisan lines to deliver at at least 6-3 rulings. So we need centrist justices like Kennedy, not firebrands whose votes in each case are known beforehand.
7
seems to me the left lost because the calculation has been left vs. right for too long. both sides will win some and lose some at that game, though the country will never win.
3
A special thanks goes out to all those millennials and Bernie fans who decided that their superior ethical standards compelled them not to vote for Clinton. Hope you enjoy all the wonderful Supreme Court decisions we are going to have for the next twenty years.
146
I agree. Voting the Green Party or write in vote was such a brilliant and mature thing to do.
7
It's not just the Bernie voters and their purity mindsets. It's the idea among the Jill Stein voters and Gary Johnson voters that the idea of voting is to "express one's personal values." No! The idea of voting is to decide who is going to occupy that seat in the Senate, that seat in the House of Representatives, that seat in the Oval Office. It's about electing our representatives in government, not about "expressing one's personal values." If one wants to do that, write a book or post on Facebook or something. Voting is serious business.
18
Those who continue to blame Bernie Sanders and his supporters believe that the Democratic Party and this country would have been better off if nobody had challenged Clinton in the primaries, if we’d had a coronation, not a contest. Hillary Clinton won the popular contest by three million plus votes, but lost the election all by herself, along with some help from Trump’s comrades in Russia. Stop blaming Bernie and Progressives. Hillary and the DNC need to take responsibility for what they stole from US.
4
Yes, the Right has won the Court. But whether the win was legitimate depends on the legitimacy of the Trump presidency. If, after the Mueller Report, the public denies the legitimacy of the Trump presidency, why should the public accept the legitimacy of the Trump Court? Public and congressional pressure have been known to force the resignation of sitting justices. Remember Abe Fortas? Does anyone doubt that congressional Republicans would remember Abe Fortas if comparable questions of legitimacy faced a Democratic president about to determine the Court's future for a generation?
5
A proposal:
No SCOTUS nomination until the Mueller investigation has concluded and made a public report available.
52
HA-HA. This is delusional. Will never happen.
Now what ?
Well, with luck, the first thing they'll do is reverse Kelo v City of New London.
That would be a wonderful in-your-face for Breyer.
5
Objectivist
Yeah, no, that's not going to happen.
In 15 years the Republican party has gone from boasting a conservative Justice (O'Connor) who wrote against the decision favoring the city in Kalo, "The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms." Meaning that would be a bad thing.
In the intervening decade and a half Republicans have sold their souls and sold out their country to corporations and the very wealthy.
If you want relief from Kalo, you're going to have to turn Left.
2
Fun fact: All those houses were torn down for nothing, because the deal to redevelop that part of New London fell through.
We will also never know what would have happened if President Obama had put a deadline on the Garland nomination back when Hillary seemed a lock for the presidency. Faced with the reality that they wouldn't have the chance as lame ducks to pass Garland he might be on the bench.
What does it say about the rule of law in this country if we seat a court that will seek to undo most of the major rulings the court has passed in the last 50 years? Our nation is truly going backward. Conservatives are giddy.
13
Mr. Tomasky, I disagree with your suggestion that the Democrats' strategy be to stoop to the level of the Republicans. No way. I learned a long time ago that two wrongs don't make a right.
6
No. One wrong and one self-righteous honorable upstanding right gives us an authoritarian regime that will end democracy in America.
what was it? he can take the low road and we will take the high road....and we will lose, how did that work for you? fight fire with fire, you do your moral preaching when the fight is won.
This is as dire a situation as Mr. Tomasky writes, and for too long the radical right-wing GOP has used the levers of our government against us.
By means of a stolen seat (and yes, it was absolutely stolen), the GOP controls the Supreme Court and is now poised to cement that ill-gotten control for decades to come.
Senator Schumer should first try to find a GOP colleague with some sense of decency left, who will help correct the 2016 injustice perpetrated by McConnell (I can't dignify his treason with the title of Senator) by keeping this seat out of Trump's hands. Only then can we possibly begin to heal our broken democracy.
When that fails (and sadly, it will), there is only one other option: prevent a Quorum in the Senate and shut it down for the rest of the year. The slim GOP majority, coupled with the absence of John McCain, means that the Democrats could make sure there is never a quorum between now and January, preventing the Senate from conducting any business (check the Constitution).
It is a sad day that such tactics have to be considered, especially when they involve taking advantage of a dying man's incapacity. But the reality is that the GOP has been waging a take-no-prisoners war against our democracy for years now, and there is no other option left.
29
Except that it won't work. Republicans tried that tactic in 1988 while filibustering campaign finance reform. Robert Byrd ordered the absent senators arrested, and Bob Packwood was carried into the chamber feet first at one in the morning.
5
By refusing all motions of Unanimous Consent Democrats can bring Senate business to a halt.
They can leave the country
Has the DNC ever taken the kind of advice that Mr. Tomasky offers here? Have they taken any worthwhile advice? Mr. Schumer breathing fire? That's rich. There has been so much to breath fire about, I wonder what are they waiting for?
18
You do not understand. The Democrats have lost elections because our system is not a democracy, but a constitutional republic with rules that were structured to protect the minority. That is structured within senatorial representation and other elements of the constitution and further that the balance of opinion in the country is not "strongly" in favor of many of the issues promoted by Democrats. So their issues do not prevail. If they continue over a longer period of time, there may or may not be a more complete adoption of those ideas and then the political system adopts those ideas through the ballot box.
3
An illegitimate president, actively involved in criminal conduct, and with established high level contacts to international organized crime is, with the help of a dysfunctional congress going to place not one, but two Supreme Court justices. Ones that could be asked to rule on the presidents conduct in the not distant future. A court that put GWB into office, again against the popular vote. These events unquestionably undermine not the perception but the common sense essence of the rule of law and further erode the public’s trust in the foundational institutions of our democracy. Donald Trump may very well be above the law and only a dictator is above the law.
34
Wow. The video of Sen. Schumer pretty much says it all. His level of passion and sense of urgency almost matches that of Walter Matthau’s character at the beginning of The Bad News Bears.
10
I think Donald Trump has been a good learning experience for the Left. It has taught them what a racist politician really looks like. (Before, the they claimed everyone that disagreed with them was racist/bigoted.) It is teaching them the unfortunate consequences of a powerful executive branch/administrative state. (Smaller government has always been better government.) And it is teaching them that using the courts to push political agendas wasn't the wisest long-term strategy. (It's quite different when the shoe is on the other foot.) What America needs is a "resetting" of its Constitutional order. We need Congress to wake-up and start doing the hard work of making tough political decisions via compromise. We need a judiciary whose only job it is is to determine "what the law is," not what it should be. We need a scaled-back administrative state that doesn't have control over every aspect of peoples' lives. And we need an President who doesn't try to rule through executive orders/unratified treaties, as Obama and Trump have. At the end of the day, the solution to the Left's ills is the Constitution structure of our Republic, as the founders intended it to function.
9
The sleeper issue in this confirmation will be guns. There are already 3 potential Second Amendment absolutists on the Court: Thomas, Alito, and Gorsuch. In February, Thomas dissented at length from the court’s declining to hear a challenge to a California gun regulation.
5
After Trump and Putin meet, I guess we'll find out if Trump loves Putin or the NRA more. :-|
"Russian citizens over 18 years of age can obtain a firearms licence after attending gun-safety classes and passing a federal test and background check. The licence is for five years and may be renewed. Firearms may be acquired for self-defense, hunting, or sports activities. Carrying permits may be issued for hunting firearms licensed for hunting purposes. Initially, purchase is limited to smooth-bore long-barred firearms and pneumatic weapons with a muzzle energy of up to 25 joules (18 ft⋅lbf). After five years of shotgun ownership, rifles may be purchased. Handguns are generally not allowed. Rifles and shotguns with barrels less than 500 mm (20 in) long are prohibited, as are firearms that shoot in bursts and have more than a 10-cartridge capacity. Suppressors are prohibited. An individual cannot possess more than ten guns (up to five shotguns and up to five rifles) unless they are part of a registered gun collection."
See --> https://en.wikipedia.org/wiki/Overview_of_gun_laws_by_nation
It's too late. The administration doesn't seem to need the help of Congress to implement most of the regime's agenda and the Dems won't be able to overturn a presidential veto. That's all three branches sewn up, regardless of midterm results.
This article is mostly hindsight and I can't see the proposed opposition activities working, or Mueller, regardless of conclusions, having a concrete effect: only Congress can impeach. And in the alternative we have Pence and 'Gilead' running the show.
Can someone who opposes the regime say why their hope is realistic?
7
You make good points. However, the author's underlying theme and stance seem correct: the Republicans view politics as war. They have done so (at least) since Newt Gingrich. We Democrats must do the same. We should have a long time ago. We didn't. So, let's start! "Fight them on the beaches, fight them in the lanes..." The point is: we need, as Seneca said 2000 years ago, "a long breathed struggle against recurring evils." We may lose. Fight anyway!!
22
Mr. Tomasky seems to not be aware that Justice Thurgood Marshall's declining health simply did not allow him to go on any further. I think he is also too much of a political junkie to realize that this kind of 'inside baseball' maneuvering about the Court is really going to energize an electorate in a mid-term election. The activists will get excited about this stuff, but to get the voters out that you need to win, they must stick to a bigger picture of what Democrats are about. Then the problems with the legislative and executive branches, and eventually the Court, will take care of themselves.
9
Indeed. Wasn't Marshall reported to have instructed his clerks during the Reagan administration to prop up his body on the bench were he to die?
The beauty of the supreme court is that the lifetime appointments guarantee consistency throughout our lifetime. Otherwise we would be trapped in the political nightmare that we've been dealing with since McConnell refused to let president Obama seat Garland every four years instead of once in a while when a justice dies or retires. How can the public trust court rulings when they become overly political and can just be over turned in the next election.
We've had a very conservative court for the last 30 years yet they've upheld abortion rights and granted gay marriage as a matter of equal rights. Judges follow the law so if you want real change vote for a Congress that will expand our rights rather than waxing poetic about the supreme court. Remember that it was Congress that gave us the civil rights act which paved the way for the supreme court to recognize that loving vs Virginia was a matter of civil rights.
14
What is this author talking about? Can anyone really believe that the Garland nomination cost Clinton the election, or that left-leaning voters needed Clinton’s help to figure out that the winner of the 2016 presidential election would get to nominate at least one (and probably several) Supreme Court justices, or that Mueller is going to keep Trump’s nominee off the bench? Because the author seems to believe all of the above.
11
Exactly right! Hopefully, the lefty political wonks will stay firmly focused on all of the political maneuvering like the Russian collusion nonsense while those who vote in November will make decisions based on real issues like jobs and the economy. So, Mr. Tomasky, I beg you and your colleagues in the fake news business to remain in your fantasy world at least until the day after the mid-term elections!
While I respect Tomasky, he's being a little contradictory here. On one hand, he say, "Mr. Obama appeared to have deluded himself into thinking that if he advanced an older man (Judge Garland was 63, meaning he would not be on the court for 40 years) with something of a centrist reputation Mitch McConnell might decide to be a reasonable fellow and give him a vote."
But, on the other hand, there is reasonable expectation that Garland would have changed the majority decision in a host of cases - Janus (unions), Gill v Whitford (redistricting), etc. How much would it matter that the person issuing that opinion was older and white ?
Even Andrew Prokop, who is a liberal writer for Vox, understand the situation. " It was highly likely all along that, if Garland’s nomination was brought to a vote before the Republican-controlled Senate in 2016, it would have been blocked by a filibuster — GOP senators would have been under enormous pressure from their backers not to confirm him."
https://www.vox.com/policy-and-politics/2018/6/27/17510854/anthony-kenne...
This isn't about whether or not the proposed Justice is a good person or white or whatever. Rather, this is about the power of the majority on the Supreme Court.
5
The attempt by the right to end regulations of businesses to assure safe products sold to customers, reduce environmental difficulties, assure safe working conditions, and to avoid other problems in markets is based upon both a desire not to be constrained in their options by business managements and a theory about markets that concludes that markets are self regulating and that any interference makes them work inefficiently. The self regulating free market is based upon a hypothetical whereby buyers and sellers are rational agents with full knowledge of their choices and equal ability to negotiate so that the prices represent the actual value of the goods or services traded. In addition the price of a particular item will be the same in all similar deals in the same region. It's a useful theory for teaching economics but human psychology has been proven to affect decision making which goes against the ability to operate as a rational agent. In addition, buyers and sellers are often not equally able to negotiate. In reality the prices for the same products in the same regions often differ. The theory departs from the reality too much to use it for public policy. The regulations created have resulted from problems that have occurred which were bad and overcame businesses objections to them.
10
I thought that Ruth Bader Ginsberg should have retired when Obama was not only in power but had clout. I was disappointed that she didn't. Ginsberg was a great lawyer and a good justice (much like Thurgood Marshall). She was well past 80 and had had several bouts with cancer. Was it really so important that she remain on the court? Maybe she thought (like most of us) that Hillary Clinton would be elected. But why chance it? Why subject the rest of us even to the possibility of a disastrous Republican being elected? I now wish Justice Ginsberg an even longer life. But I'm more than disappointed today. I'm angry that she didn't put the country before her own ego.
36
McConnell might well have come up with a reason to block bringing Obama's pick to replace RBG to the floor even if she had retired when "Obama was not only in power but had clout." And if he couldn't block a vote, he would have made sure that any and all Obama picks would have been voted down. You are underestimating the evil that is McConnell.
Why are you talking about a woman who remains on the court and not a man who retired months before midterms with a maniac in the white house? Seems like you're angry at the wrong justice.
People don't realize how bad this is. Expect Clarence Thomas to retire as well if the Republicans retain the Senate and be replaced by an arch conservative that will sit on the Court for 40 years.
19
OK for Ginsburg to sit on the court into senility but no-no-no for conservatives.
Marshall had to be wheeled out and propped up the last couple years of his tenure on the Court. It was torture for him to serve and he was effectively incapacitated. His resignation was an act of self-mercy.
15
Sorry, but I still blame the Bernie contingent. Short sighted lot with no concept that politics is a long term chess match. Thanks, bros....for nothing.
139
Why not blame the established Democrat contingent instead?
If the crooked DNC has not set debates opposite NFL games, thereby killing the viewing audience Bernie need for name recognition, and rigging the questions and answers for Hillary's benefit, Bernie would now be president and not Trump.
Bernies "contingent" also was the answer to a great number of needs Trump's voters wished for. He could have split that marginal vote that elected Trump.
The Republican Party is corrupt to the core. The American people were wanting someone other than an established politician and the Democrats offered the most established of the establishment.
Don't blame Bernie.
5
Actually, they were the only group of Democrats fighting for long-term goals. You know, those things Hillary Clinton said were "never, ever, ever going to happen"?
And by the way, calling Bernie supporters "bros" does nothing but reveal the childishness and vindictiveness of the Clinton wing of the party and insult the many women who supported Sanders. That doesn't get us to tomorrow.
5
I agree. But lets remember the 46% of eligible voters who didn't vote. Why? Are they (a) disenchanted? (b) complacent in their conviction that America is the best of all possible worlds and will always be so?
1
I hold President Obama significantly responsible for the mess we are in, because he was such a class act, such a thoroughbred, which was a complete disaster in Trumpworld.
What could he have done differently? He could have gone to the mat. He could have fought the argument, tooth and nail, that he should not have the right to nominate a justice in his final year. Where does it say he cannot, in the Constitution? Does that much-revered document suggest that the final year of a presidency is not an appropriate time to execute his duties, one of which was nominating a Supreme Court nominee?
He could have fought, and fought, and fought some more, and even have it adjudicated by the Court itself. Yes, the Senate had the role of advise and consent, but that did not trump the role of presidential appointment, did it? Obama should have went for a constitutional crisis, instead of being so pure.
The Obama mantra - "when they go low, we go high" - is no tactic for street-fighter. You never bring a knife into a gunfight.
165
Yes, I too wish things were handled like that, but you know that hindsight is 20-20. I am sure he would have done things differently if he knew back then what we all know now. It's all very painful.
15
A more winning motto and strategy might be: "When they go low, we go lower." Going high just results in more authoritarian right-wing evangelical destruction of all the ideals that are supposedly the foundation of the United States.
1
Fair enough: hindsight is always 20-20. However, was it passivity or strength that he held back fighting his constitutional right to appoint a justice? I argue that it was passivity. He was calling our higher angels. Well, guess what...Mitch McConnell and Donald Trump don't operate on those principles. It is all about winning, and having power, for them.
Obama's statement - "that we are not a Red or Blue America but a United States of America" - is coming off very naive these days.
It should go without saying that Justice Ginsburg will recuse herself from any cases involving Trump based upon the personal attacks she made on him during the campaign.
7
Trump more than balanced the score with his personal attacks on her. They’re even. No recusal needed. Moreover: She acknowledged she should not have openly criticized Trump.
Yes, the conservatives are smart. They know exactly what the one prize is. Everything they want leads from the Supreme Court. Liberals, progressives and now Socialists have myriads of prizes (real or fantasy) and every group fights for their own prize. And woe betide the liberal candidate who is not passionate about their particular prize. They will shame that candidate by not bothering to show up to vote irrespective of what the alternative is. Thank you so much Jill Stein and Bernie Sanders, both self-serving, egotistic my way or the highway politicians for giving us the Trump Supreme Court.
32
This is sadly true. As a pragmatic progressive, I have for long shook my head in consternation at what I have dubbed the 'utopian left'. These 'pie-in-the-sky' dreamers, armed with a moral certitude that nearly matches that of the evangelical right, spurn what they deem half-measures and fail to support sensible candidates who would help them reach their goals in the long-term.
9
Do you understand that in America we have multiple candidates fighting for the same job? We don't crown people here. We vote. And we vote for who we want, thank you. What were you saying about shaming?
1
Yes thank you and I really mean it- a conservative.
The idea that Mrs Clinton never mentioned the likely effect of Mr Trump's election on the supreme court indisputably false. If it didn't make the public impression the author thinks was appropriate, perhaps he'll look to the coverage by this newspaper and ask if their coverage served the public well or poorly.
53
What a strange system you have whereby a Supreme Court can change and or reverse it's own rulings depending on which balance of those Judges hold either of the two Political parties beliefs /views suggesting that from the outset dependent on who chooses which Judge or judges determines the Ideological/political Bias they will exhibit in their rulings and judgements over the course of their permanent for life positions.
And by the balance of the ideological/Political views and bias held by the majority of the Judges is determined the fate and fortune of potentially 320 Million Americans!
I would have thought that Supreme Court Judges of all Judges would HAVE TO BE politically and ideologically Neutral both in their Judgements and their Roles , given they decide the fate of ALL Americans , or females or Blacks...anyone and everyone and therefore CANNOT be politically biased.
Otherwise...what's their point?
Sounds like Rule and Policy implementation by 9 people with the majority decision becoming law by an obviously ideologically /politically motivated Bias!
How Democratic IS NOT that!
Especially given the fact that in regards to the makeup of the court as well as many of the cases it takes on...The Majority of the People do not have a say or get to provide input to such an important and obviously elite body of core decision makers whose rulings can determine the outcome, freedoms or restrictions imposed on Millions of people.
27
The solution is smaller Federal government....
Otherwise...what's their point? Power. Hatred. Mix in money. You can't create a vacuum wherein a rarefied crop of SCOTUS justices are raised like hot house flowers of purity. Republicans in our modern era re-figured that out a couple decades ago and never looked back. The ends always justify the means. That's them in a nutshell. Thus their happy glom to "Trump". They will tell that to your face, while laughing at you and finally spitting on you if you are merely lucky. No one ever said that the US of A need hew to fairness. It's always been a bloodsport. Winners and losers writ large and with extreme prejudice.
Loomy,
We’re a Republic! Our Constitution and Court System makes more sense than whopping great rabbits with pouches do!
Affirmative action is a policy intended to remove the legacy affects of institutional racial discrimination which deliberately made it extremely difficult or impossible for people to prosper and to improve their circumstances as this country grew into the wealthy and most powerful country in history. To work effectively, both the end of racial prejudices generally and growth comparable to the time of greatest national economic expansion were necessary. Neither were adequately fulfilled during the half century since the policy was initiated. To end it now just leaves the minority groups affected where they were half a century ago.
3
Tell that to all the black lawyers, teachers, physicians, nurses, engineers, business people, politicians, artists, musicians, poets, athletes, etc.
A conservative Supreme Court that ends up making unpopular decisions such as overturning Roe v. Wade will, on the long term, have the opposite effects that social conservatives want to see. As A points out in the comments below, many issues the Supreme Court has decided should actually be decided by the political process. Most other countries that have legalized abortion, gay marriage have done so via the ballot box.
Conservative representatives who are against abortion, currently can get votes from people who are opposed to banning it, simply because it's not on the political agenda today. That will change after the Supreme Court overturns Roe v. Wade.
In most US states the majority will not be in favor of banning abortion, but many of the Republican representatives from these states are very socially conservative. This will then change due to the political pressure from the electorate, the Republican party will end up becoming far less socially conservative than it is today.
The most conservative States like Texas may decide to ban abortion, but if the Republican party becomes more moderate at the national level, that will end up changing attitudes there too.
6
Where is the head of the DNC, Tom Perez, In all of this? What absolute muppetry; a total void in leadership at such a crucial time.
Overturning gerrymandering in the courts should be seen as a long shot at best and a lost cause in all other scenarios as the SC will never give up that GOP advantage once the new justice is seated. Same for voter suppression tactics.
Therefore, Dems must, must, must focus on voter registration and turnout, full stop. Don't worry about messaging or candidate selection; a big tent approach is fine - the GOP puts up absolutely embarrassing fringe candidates, Trump flip flopped contestantly on positions/messages, etc. Doesn't seem to matter as the GOP racks up lots of electoral wins, does it?
This is about voter TURNOUT. Registration drives for Puerto Ricans in FLA anyone? Making sure elderly voters have proper IDs? Confirming voters haven't been purged from the reg roles? That's all the work that needs to happen NOW. Begin litigating county by county to ensure that there will be adequate voting facilities (start now filling suits vs any locale who had multi hour wait to vote in 2016, give plenty of lead time for litigation, bully municipalities and started to be prepared, etc.). This is the role of the DNC - let's pressure Tom Perez to get to work or step down.
130
Roe v Wade ended laws against abortion of developing fetuses up to a certain stage before birth. There were very good reasons for making this decision.
Firstly, the viability of a fetus is not certain until it has become able to live outside the womb. Whether any of them do become babies is uncertain. The notion that human beings are existent upon conception is nonsense, it takes further development even to become the start of a particular being. Nature provides no assurances.
Secondly, child bearing and birth are causes of deaths of mothers and of the unborn. Forcing some women to carry fetuses to term will cause both to die.
Thirdly, even live babies can present severe threats to the survival of families who cannot support all of the resulting people. The birth of additional children has often lead to malnutrition and difficulty surviving for whole families.
The principle of Roe v. Wade is that individuals have the right to determine their fates, that they have no obligation to suffer in the belief that it is their fate or God's will if they don't believe that. It is truly a matter of freedom of conscience and the separation of church and state.
There is no independent factual evidence to support the anti-abortion argument, it is based upon the faith based belief systems to which opponents ascribe. It is not invalid it's just not based upon rational evidence.
38
Also, the rich can have abortions any time they want, by going somewhere it is legal. Most people do not have this freedom, and it is a financial burden or impossibility. The result for the poor is dangerous, illegal procedures, or more poverty due to the price of raising a kid. Of course, the rich are interested in oppressive abortion laws that help keep them in power.
While I agree with you completely, there's a growing feeling in me that we have to let Roe go. The 'conservatives' won albeit in a faulty election. I'm beginning to feel that the only way to get rid of Trump and the rest is to let them have their day, forcing all of us to see what the man behind the curtain really looks. Clearly his bashing immigrants isn't enough to sway the tide. He needs to hurt us and we need to feel it.
Casual,
“The Right to decide their fate”? No, not if they are an unborn of any age they don’t!
2
The Democratic Party has failed in selling their brand. They need to hire an advertising agency because Americans have amnesia and the "Not Trump" policy will loose it luster quickly.
13
There is only one name this president should nominate for this open seat. Merrick Garland. Older, more conservative than many might now prefer, there is a fairness issue that should out weigh Party.
I would like to see Democrat leaders demand his name be submitted to the Senate. And call a national strike until he is nominated and confirmed. It is time this country demanded fairness in this one thing, to erase the consummate insult to President Obama. Millions walking out, sitting down at their state capitols, demanding fairness. I might believe in America’s promise again.
19
By what right could Democratic leaders demand this ? What national strike would they call that their Republican counterparts would join and support? Telling them to basically throw a temper tantrum is not the kind of leadership that will attracts voters.
7
Jo, you're asking Mr. Chaos to be rational. Think it through again.
It's time to have a term limit for Supreme Court justices. One eighteen-year term per justice. Each president gets to choose two justices over the course of four years.
By removing lifetime appointments, it means better-qualified justices might be chosen (no Gorsuch or Thomas), and it prevents them from staying there so long that they lose touch with the world (Scalia).
It also will lower the stakes.
52
No, term limits would be a bad incentive for Justice's to become ever more strident as their tenure draws to a close. Go out with a bang, etc.
7
I think the movement to pick ever younger nominees is the greater concern. But I also think 18 is too short a term. I would argue for 24 years, and 12 justices, all justices hearing cases, but 9 selected at random to render a verdict. Randomization would make it harder for either side to tailor arguments to specific justices, a common current practice. Done carefully, the infusion of additional justices might go toward a reboot of the credibility of the institution.
6
I'd rather there be one seat per Federal Appeals Circuit chosen from that circuit's judges. Then we'd have better geographic, and probably scholastic, representation as well as a more background, specialty, and age diverse court.
If in the future, Democrats control Congress and the Presidency, why can't they change the number of Supreme Court justices? The court has not always been nine members. It would take a lot of courage and more behavior like Republicans. It would mean ignoring their complaints. They could also increase the number of other federal judges at all levels and appoint those judges.
16
At a minimum, with McConnell's heinous adventure, we now desperately need a rule regarding voting once nominated.
1
I was thinking that we should look into removing Gorsuch who only got seated because of McConnell's criminal refusal to follow Constitutional law and have confirmation hearings for Merrick. Then we would have ot go back and repeal his rulings as well since he is not a legitimate Justice.
How is McConnell avoided being designated the #1 most racist politician in America after declaring that Obama would be a one term President and that he would not work with him in any way immediately after he won the election?
Tomasky writes the following if Dems had made more of a push on the criticality of the Scalia vacancy to swaying the 2016 election: "We win, it’s ours! Voting rights, abortion rights, contraception, L.G.B.T. rights, union rights, money in politics, Second Amendment interpretations — if we get this one vote, all of those and more will change in our direction!"
This is the continued delusion of the left - endless hyperbole about the importance of the Court to swaying the nation to their progressive agenda. The Supreme Court is just one branch of the government. And it is, for the most part, expected to be a tempering element on the other two branches, not getting out ahead of them. The more the SC has gotten out in front of issues - abortion to name just one - the more it has undermined the peoples respect for our government.
Gay marriage, while perhaps not entirely settled law, is here to stay regardless of who is put on the SC by Trump and the Senate. Why? Because, unlike Roe v Wade, gay marriage was an organic change, first in the general population and then in the law.
Unions were not outlawed by the recent SC ruling. Instead, the extraordinary over grasping by rapacious public sector unions was slightly curtailed.
Maybe the Dems (and the Reps) should be asking a more basic question - if you can't legislate to some degree of consensus of what is best for the country, why would any one expect adjudication to be the answer?
22
I agree with much of what you say, Common Sense. But I don't think the Court was all that far out front on abortion. Polls showed then that a majority of voters approved of choice. Today the percentage is overwhelming. I, too, prefer organic growth rather than startling about-faces. But Brown v. Board of Ed was the right course of action even though many conservatives argued that it just wasn't the right time -- yet. And Roe was also the right decision. Let's also recall that Roe was a 7-2 decision and the opinion was written by Justice Harry Blackmun, a Nixon appointee.
4
The role of the Supreme Court is neither to be "out ahead of" the two other branches, nor is it to be subservient to them. The role of the Supreme Court is to make sure that the states and the other two branches of government comply with the Constitution, which contains a lot of great stuff.
Brown versus Bd of Ed was "out ahead of" the two other branches; it was not the public consensus. Sometimes the ideals of the Constitution as interpreted by the Court lead us to far better policy than a fickle public and cowardly executive and legislative branches can provide. Judicial activism is our best shot at maintaining the rights promised in the Bill of Rights.
6
@DLNYC I guess that's only true when the Democrats are in the majority. Now you are going to see Conservative judicial activism. Are you prepared to accept it ?
This article nails it - hope the democratic leadership reads it and follows the script - it is a winner and has the advantage of being the right thing to do - Nice Job Michael!
11
If Hillary Clinton had won the presidency we would definitely have had a liberal Supreme Court justice as our next choice. Thank goodness that did not happen or our court would have continued down a progressive path. That would not have have been healthy for our country.
The left is very upset about the certainty of having a conservative as a new Supreme Court justice as they should be. They are in a panic and only have themselves to blame. They will no longer see their liberal agenda be the law of the land and it is wonderful. It is about time that the country got back to normal and end these leftist policies. It took a while to get to this point but the wait was worth it.
19
Sure. What economically advanced country governs by small government, low tax, low regulation principles? Why not one in the entire world, because it dose not work, nor did it ever. Because corporations out for profit does not make a working country. Ever.
13
I'm confused. Hilary would have appointed liberal judges. Except she lost the election because she wasn't liberal enough for the Sandernistas. But too liberal for this writer, who supports Trump. Who is in bed with the Russians. Who are barely reformed Communists. Who are more to the left than Bernie and the socialists. Who are left of Hilary.
Good Lord...we've been trying to make sense of James Madison when we should have been studying M. C. Escher.
You're not going to like the new normal. Stay tuned.
1
Well, the GOP now faces two options. Nominate a consensus candidate, appear reasonable and move on. Very good for the midterms and really good for the country. Nominating an extremist, on the other hand, leads to a crushing defeat. If the GOP chooses the second option, as is likely, both they and the whole country will pay a terrifying price for this victory for their minority base. The Supreme Court is not likely to survive the move because nobody will find the nomination fair or legitimate. In short, the court will be perceived to have zero credibility. FDR's court packing schemes and term limits are certain to resurface when Democrats win Congress and, inevitably, the presidency. This may seem unprecedented but it is not - the constitution has been amended many times and the majorities that the Democrats will raise on this issue will be historic. The GOP will have to consider their move really carefully because the consequences of the wrong choice are almost certainly going to be dramatic.
6
There is no chance of this, as the nominee will come from the Federalist Society prepared list of 25 candidates. This is not the GOPs choice, it is Trump's, and the party will fall in line, with a faint hope that Murkowski and Collins would oppose a blatantly anti-abortion candidate. That would assume that the nominee would not obfuscate their real position. But even then, vulnerable red-state democrats may rescue the nomination.
The only possible actions the democrats could take is to use all of this (and the immigration issue) as a tool for organization and protest. Turn Texas blue again. Take State Houses. Use the gerrymandering precedents to take advantage of the 2020 census and turn the tables.
Even spend some money to re-register strategic numbers of democrats from pure blue districts to tight red ones (even in other states). It is easy to re-establish voter residence. Just need an address....
13
If Mueller's report shows grievous collusion with Russia and large scale criminal activities such as money laundering that would place any decision Trump has made during his presidency suspect of being directed through collusion, extortion or criminal intent, wouldn't all of his appointments be under a cloud of suspicion. Couldn't a Democrat majority House of Representatives and Senate demand the removal of any Supreme Courts justice and indeed all judges appointed during the Trump administration? Certainly a Supreme Court Justice can be impeached. I believe the Mueller investigation will face extreme pressure beginning immediately to prevent exposure of the truth. The demeaning, profanity laced attacks on Rosenstein in today's Congressional hearing indicate a ramped up pressure. Republicans will win this Supreme Court seat. But possibility of explosive revelations in Mueller's report that could shatter the foundation of Trump's presidency and thus every decision and appointment he has made suspect will make alt-right Republicans, oligarchs and religious extremists desperate. The Supreme Court will resolve itself either in the long term or in a short term constitutional crisis. Right now Mueller's investigation and all of it's harrowing consequences is still of paramount importance and a grave concern to all Americans who hope to preserve democracy and freedom. No one issue, not civil rights, abortion, election laws, environmental protection, etc takes precedent.
8
Hillary did talk about the Supreme Court opening and the Garland nomination during the campaign. In some interviews and speeches, she seemed to support Garland given how qualified he was/is; and in others she would not commit to Garland and suggested she would probably withdraw his nomination and submit someone younger and considered more liberal, as payback to Mitch McConnell.
Washington Post, August, 2016: "What a President-Elect Clinton would do with Garland is a question that is becoming less speculative by the day — she has a gaping lead over Trump in key state and national polls."
US News, September, 2016: "Clinton Refuses to Commit to Garland, Says She Would Emphasize Diversity & 'Common-Sense, Real-World Experience.'"
Hillary Clinton: "If I have the opportunity to make any Supreme Court appointments, I'm going to look broadly & widely for people who represent the diversity of our country, who bring some common-sense, real-world experience."
6
GHR,
Since God truly is great, we were spared the pain of finding out what your last quote meant!
1
One of our two political parties has mistaken itself for a country. We will minimally have a strongman with the title of President, or an individual that will be determined by the embedded special interests. Our democracy is over. It ended with the revocation of the Fairness Doctrine. The coup de gras was Citizens United. Deal with it. The Democrats best tactic at this point is to impeach Gorsuch and Kennedy’s replacement. Tit for tat. Don’t think for a second that McConnell wouldn’t do the same if the situation were reversed. This is what we have been reduced to.
20
You seem to be confusing the attitude of the majority of Americans towards Donald Trump and their attitude towards his choice for Supreme Court justice. While the majority of Americans may oppose Trump and even consider him generally unfit to be President, I believe that the majority of Americans have no problem with a predominantly conservative Supreme Court. If Democrats fight the nomination of a qualified but staunchly conservative Supreme Court candidate to the bitter end, they not only will lose that fight - they will jeopardize the more important goal of ensuring that Trump is not elected to a second term.
13
In addition, since the debate over a candidate will occur at or near the November elections, Democrat rejection of the candidate will jeopardize incumbent Senate Democrats in West Virginia, Indiana, Montana, North Dakota, and Missouri.
So I'm very much hoping that's exactly what the Democrats do.
8
I've read many of the comments below and am pleasantly surprised. I'm very conservative. I want the Supreme court to have less importance in deciding the issues of our days. Sound legislation with compromise on both sides is the ideal.
10
If that is your view then you are not "very conservative" in today's delusional meaning of the term. For today's so called conservatives, compromise is treason.
Yes. The Kennedy seat is a sort-of loss rather than a full on disaster. While he was often a 'swing' vote, he was more conservative than not. Recently he has consistently voted with the right.
The real worry is Ginsburg's seat (in her 80s, history of cancer). The possibility is real that she will retire or become ill before 2020 - and rises if, God forbid, Trump wins a second term. Democratic control of the Senate will not prevent Trump from replacing her, but it would help to temper his worst impulses and demand someone more moderate.
2
Actually if the democrats did control the senate, there is no way that Trump could get his pick through. The republicans would need 51 votes and if the democrats had those 51, then no vote.
3
I would love to see democratic control of the Senate but I don't think that it is likely. To me the most likely possibility is that the republicans continue to control the Senate at least to 2020 and maybe beyond and trump reelected in 2020.
Not a pretty picture. I don't know what it will take to convince the democrats of the need to start showing up at the polls on election day and winning some elections.
5
Only if they didn't already have extremely vulnerable senators in West Virginia, Montana, North Dakota, Indiana and Missouri (and possibly Florida). But they do.
Yes I do blame Obama, who would not fight for any principal really, thus the bland but eminently qualified Mr. Garland, and strove to endlessly "reach across the aisle". Could it be he was more center right than the progressive agent of change persona he played that got him elected? Hmmm.
And Mr. Schumer did not yesterday or ever breath fire. That is a problem.
13
Obama was never a liberal, he was always center right. Obama was a compromiser. The problem is that you need a compromiser on the other side who will make a deal. And the republicans wouldn't do that.
When Boehner declared he got 98% of what the republicans wanted in a deal, it showed just what Obama was willing to give up to compromise. And when the republicans rejected that deal because they wanted 100%, it showed the republicans would never compromise.
It's the reason why Obama started issuing executive orders, he had come to realize that he had no partner to compromise with.
But Obama was no liberal or socialist as they tried to paint him.
5
I am waiting to see if any Democratic candidate for the presidency ever again says “There is no red America. There is no blue America. There is only the United States of America.” That was really rich.
Robert
Yes, the republicans proved Obama was wrong about that. They told america that they would ensure he was a one term president by refusing to work with him at all.
Like I said, Obama gave the republicans 98% of what they wanted and they rejected that because it wasn't 100%. So republicans proved they were not willing to work with Obama.
It was the republicans who insisted there were two americas. They proved it every time obama reached out to them. Republicans have made sure we are divided.
This article also makes the point, however, that how a nominee ends up actually deciding cases over time is not always quite as clear as the pundits would have one believe. As it states, David Souter was a Republican appointee who was thought to be conservative, and ended up deciding cases in a manner that Democrats generally approved of. President Kennedy's appointment of Byron White ended up going a bit in the other direction, someone who was considered a mainstream liberal for his time, but who ended up more conservative as the years went on and society evolved away from the standards of the time when White was originally appointed. So the hand-wringing may be wasted energy.
4
Would that were the case. These candidates already have been vetted and approved by the Federalist Society.
7
Sadly many democrats have been disappointed by republican and democrat politicians. Republicans are not the republicans of past and democrats have been under the influence of a party strongly influenced by the Clintons. The Clintons are now gone but their legacy continues to influence a diluting of working class democrats. Then we have a lack of positive energy in the minority leadership in the House and the Senate.
Essentially to start over we need to look at the top of the party and not simply us registered democrats.
7
Democrats have brought this disaster upon themselves by failing to vote in mid- term elections, cycle after cycle. 2014 mid-term is the origin of the present day. Senate flipped to Republicans in 2014 enabling Mitch McConnell to deny Judge Merrick a hearing in 2016 and now the Supreme Court decisions in 2018. The key lesson for Democrats is follow the Republican example, and vote in mid-term elections. For God's sake.
51
Democrats brought this on themselves with their corrosive identity politics. White men are so fed up with being vilified by everyone other than white men that they voted for a narcissistic, immoral, ignorant buffoon simply because he stood up for them. Rather than learning any lessons from this disaster, the Dems have doubled down on their tribalism, continuing to ignore the fact that you cannot heap contempt on the largest demographic and still win national elections.
It should go without saying that any Supreme Court Justice appointed by Trump will need to be recused or barred from participating in any of the Court's cases involving the President that are occasioned by Mueller's investigations.
21
What is the precedent for that? Supreme Court Justice is only recuse themselves on cases in which they have been legally involved in the past
5
They choose to recuse themselves or not.
It's good to see three things that the Democrats can absolutely do with regard to the nomination of Kennedy's replacement. All three can be done, and all would be beneficial.
Why do I believe that this current crop of Democrats won't manage to get them done?
11
Because politics is a knife fight to which democrats bring a spoon.
"All of those “Christian” conservatives knew very well they were voting for a man who was about as Christian as Larry Flynt. But they voted for Donald Trump en masse. They, directed by their political leaders, had their eyes fixed firmly on the prize of that swing Supreme Court seat."
Yes! Thanks for helping to clarify an issue that has long bothered me. I had a friend who was a strong evangelical Christian, and he argued vehemently that all Christians needed to vote for Trump, solely to change the balance of SCOTUS and eventually remove the right for abortion. Trump's character, very questionable qualifications for President, and any other policies or issues, were irrelevant in the vote.
21
The evangelical vote is a shock to people who don't know any evangelicals because they stereotype evangelicals as unsophisticated rubes who have no capacity for pragmatism. This view is a prejudice that is every bit as disabling to the holder as is a racial or ethnic or gender prejudice. Many evangelicals have been to far away places for long periods of time and are under no illusions about how the world is or how politics work. As pragmatists, #neverhillary made perfect sense to them because they understood the implications of a Hillary presidency. That Hillary supporters are oblivious to this possibility is part of the disease of sneering condescension that lots of her supporters have towards evangelicals and only energized the evangelicals to favor Trump even more. This is and will be a chronic problem for the Dems until they wake up and smell the prejudice (and smelling it, rid themselves of it).
caleb,
Exactly what “Religion” does HRC practice?
Good for those weasel Christians for being hard-eyed realists. The Boys and Girls who voted for Sanders to prove a worthless point, to establish their ideological purity, to poke a finger in the eye of mainstream Democrats, are the authors of all of this. I say the R's won this fair and square: now let them burn it the Hell down. America is marginally more free than Putin's Russia: we just dress it up in ribbons and bows better. I am so over this benighted land. I give not a damn what happens: it will be decades, decades more of right wing stupidity and I pray it means the end of America.
I agree with pretty much everything here except the assertion that the Clinton campaign did not make an issue of SCOTUS. She brought it up all the time and in every debate, as I recall. The only one to blame for not putting the SCOTUS nomination front and center is the DEMOCRATIC VOTER. I spent hours talking to Dems in Ohio and Pennsylvania (I live in CA, so my vote doesn't really impact national elections) about SCOTUS specifically, and they all claimed they would show up and vote for Hillary. Well, young, poor and minority voters didn't, and "working class" (read: white) voters gambled on an unknown (I still can't fathom why they thought he'd fight for them. I hope they know better now). As depressed as I am, I WILL vote. I WILL call Dems in "purple" states. And, we should fight, BUT not if it means losing Dem senators from Red States. We have to be smart, not just "fired up" (although we need that, too). At this point, our real fight is electing Democratic majorities to the Legislature. Sadly, (unless Mueller has a BIG BOMB to drop) we lost the battle for SCOTUS in 2016.
19
Why blame the voters. It is time we looked inside our party. It was clear the primary was rigged in favor of Clinton - it was also pretty clear that many democrats liked the message of Bernie Sanders. Trump prevailed on Sanders platform. We lost the Supreme Court not because of the voters but because of the Clinton influence on the democratic party.
12
I'm sorry but, IMO, that POV is the problem. I don't understand why Democrats are angry that the party supported a life long Democrat. Bernie became a Dem to run for president. BTW, Hillary was closer to Obama in the Electoral College than Bernie was to her when she conceded the primary. Look, half of my family vote for Bernie, but then - just as Bernie did - they became full throated supporters of Hillary. I hope, since you live CO, you will vote for a Dem no matter how "conservative" you may feel they are. We must have majorities first, then we can argue about the soul of the party.
3
Typically good column by Mr. Tomasky. But in addition to focusing on what's important (i.e. the courts), Democrats need to stop focusing on what isn't: identity politics, language policing, fighting micro-aggressions, etc. As Donald Trump shrewdly recognized, these issues don't just fail to win votes: they actually induce potential Democratic voters to vote Republican. If the Democrats don't change their message, and if they allow themselves to be identified as the party of Maxine Waters, their return to power will be an occasion celebrated by our great-great-grandchildren.
21
This argument is tired. What part of “identity politics” drove would-be Democratic voters to Trump? Was it insisting that unarmed black people shouldn’t be killed by cops? Or that transgender people deserve the right to freely roam the earth? Or, relevant to the Supreme Court issue, that women are people and deserve a representative seat in government (even, god forbid, the presidency)?
Or, are we supposed to believe that the average swing voter was so concerned with campus trigger warnings and safe spaces that that issue took precedent over racism, war, decency and the Supreme Court, and more?
Please consider what your argument actually means.
Whoa! Identity politics helped Trump win. His bullhorn on bigotry and racism galvanized the base to vote for him. The republicans have been using identity politics since Nixon, Willie Horton ring a bell? They do nothing but use identity as a way to win.
If it isn't about blacks and hispanics, it's about gays and muslims. They play that hate card all the time.
They have successfully branded democrats as using identity politics while they are the biggest users of it.
And micro-agression, another republican tactic.
They just do all of it better by appealing to the worse nature of people.
While democrats preach diversity and tolerance for everyone, republicans preach hate towards minorities. Gay marriage will destroy our straight marriages. The hispanics are murderers and rapists. The muslim are pouring into the country and killing us all.Black people don't know their place. They are all thugs when they march. All identity politics to get people to vote republican. All micro-agression tactics.
This has been their tactics for so many decades, promoting how minorities are going to hurt them. And it has been successful.
Amen to that.
If Democrats are looking for someone to blame for this debacle maybe they should look in the mirror. The left is totally responsible for making Trump's next SCOTUS nominee a slam dunk. In 2013 Democrats took the dramatic step of eliminating filibusters for most nominations by presidents, a power play they said was necessary to fix a broken system. Dems used a rare parliamentary move to change the rules so that federal judicial nominees & executive-office appointments could advance to confirmation votes by a simple majority of senators, rather than the 60-vote super-majority that has been the standard for nearly 40 years. The rule change represented a substantial power shift in a chamber that for more than two centuries has prided itself on affording more rights to the minority party than any other legislative body in the world. The Dems by changing the rule gave a president whose party holds the majority in the Senate an absolute certainty of having his nominees approved, with far less opportunity for political obstruction. And lets be honest. Dems did this in an effort to stack the D.C. Circuit court, which reviews many cases related to federal laws & regulations, to tilt its balance in a liberal direction. We should note to their credit every Republican voted against this rule change. They said the way Democrats upended the rules would result in fallout for years. The GOP vowed to reciprocate if they reclaimed the majority. And they have. We have met the enemy & it's us.
35
Say what? You honestly believe the GOP would have honored the filibuster norm when presented with a Supreme Court vacancy, if only the Democrats hadn't disregarded a 40-year-old norm? Where exactly were you when, in order to hold a vacancy open, then refused to consider the nominee of a sitting president for over a year? That broke a norm that was 230 years old, give or take. I guess they got some cover for their actions, but rest assured that if the filibuster was untouched when Trump took office, we would still have Gorsuch.
3
Bill Brown writes, "If Democrats are looking for someone to blame for this debacle maybe they should look in the mirror."
No. Not the case, unless they can look at mirror that Bill Brown is standing in front of. Yes, Democrats would do better to blame Bill Brown for this SCOTUS debacle. That's because people like Bill Brown didn't vote for Hillary because they liked Bernie better...or they voted for Jill Stein or they voted for Trump.
When the Democrats held the Senate, the republicans were putting on a major stall on every judicial nominee from Obama...there weren't letting anyone out. It was all part and parcel of making the Obama Presidency a failure. So, the Democrats were forced by the republicans to change the rules so any of Obama's judicial appointees could be reviewed and voted on.
Furthermore, the Democrats knew that the republicans would never, ever, not in a million years, allow the Democrats to do to a republican president what the republican minority were doing to Obama. So, in fact, the Democrats had absolutely nothing to lose.
NOTHING.
The only person with anything to lose here was Bill Brown, and his republican handlers.
1
If a very conservative court appointee is on deck/appointed before the midterms then the messaging that now it is up to Congress to make laws that set precedent so it never makes it to the supreme court in the first place will help turn out Democratic voters even more.
2
Very conservative here, I agree with you. I don't want these things decided by the courts. I want them decided by our elected officials.
9
The problem here is that constitutional amendments would be required to give Congress the power to address many of the issues that now are going to be left to the States by the new Supreme Court.
In the very long run, it may be good for the country if this right-wing court ends up unconstitutionalizing some of the things that have been taken out of the normal democratic sphere, albeit for the right reasons. Nobody truly believes the constitution was intended to protect a right to abortion - at least nobody but the truly deluded. The great weakness of Roe v. Wade has always been that it is simply nonsense from a jurisprudential point of view, and everyone knows it.
Roe v. Wade gets to the right result in the sense that it is good for society for women to have abortion rights, but by constitutionalizing the issue when it was pretty clearly never intended by anyone at the time to be protected by the constitution, it has prevented the sort of legislative compromise and consensus that has developed in every other first world country on the issue of abortion, and has done tremendous lasting damage to our body politic along the way.
It's no great consolation for the women who will suffer and possibly even die in the meantime, but in the long arc of history, overruling Roe v. Wade would probably lead to more stable abortion rights for women in the future.
7
l'm recommending your comment because I agree with the overall premise. I'm not agreeing with the idea that overturning Roe would be a good thing. They say politics is the art of the possible. The more stable abortion rights for women through legislative action you envision just won't be possible for a long time. It's one of the most divisive issues the US faces, at a time of extreme divisiveness throughout the electorate. There is no meeting of minds across aisles on anything. Civil debate on abortion is a long way off.
Sorry. Usually I'm guardedly pessimistic. These days I'm extravagantly pessimistic.
1
I think you might be surprised. Polls tend to show that there actually is quite a bit of consensus around abortion regarding what people actually think. The pro-choice zealots ("abortion should be allowed at any time for any reason") and the pro-life zealots ("no abortion after conception period") represent only about ~30% of the population between them. The other ~70% generally support abortion rights early in pregnancy, but also support some restrictions on abortion, particularly abortion later in fetal development.
If Roe v. Wade is overtuned abortion would become wholly illegal in a few states, and a few more would prohibit it except for the health of the mother or cases of rape and incest. FWIW, abortion is already effectively illegal in many of these states due to licensing restrictions which in practice make it virtually impossible for abortion clinics to stay open.
Most states would probably end up with it being generally allowed prior to 20ish weeks, and generally not allowed after that.
1
Actually, the Supreme Court has found that the penumbra of rights defined by the U.S. Constitution includes a right to privacy, a right that has been established since at least 1928 when the court was ruling on surveillance and wiretapping cases. In Roe v. Wade, the right to privacy was cited as a basis for women having the right to sovereignty over their own bodies and the right to terminate a pregnancy.
Roe absolutely makes jurisprudential sense.
5
Excellent column. Obama should have fought much harder. Bernie voters should have showed up at the polls and not thrown the vote to Trump.
36
When the Republican Senate blocked moving forward on Merrick Garland, that was the time to make a big deal about the implications of a Republican president. It seemed so obvious at the time. I didn't understand why most people didn't make a big deal about Republicans holding up judicial appts., the capper being the SC seat. If it were Republicans they would have lit the outrage machine. Democrats, the response was mute. Perhaps we were captivated by the Republican nominee's outrageousness. The media certainly went that way. Perhaps people thought HRC would win. I didn't understand why people acted like it was a foregone conclusion, the polls didn't back that up at all. But it wasn't bought up to rally people and alert them as to what they could lose.
At this juncture, I'm more interested in what can be done to counter this move going forward (it feels pointless to revisit what can't be changed) but it seems better to activate whole communities who will be negatively affected by the coming onslaught on rights we took for granted for a few yrs. to decades. BTW, they will push their most extreme, what can be done to stop them? Nothing. Vote of course, but remain vigilant from local to national elections and most importantly, be prepared to fight for at least the next 10+ yrs. because the Great Regression is coming. It pairs nicely with the upcoming tax and tariff recession (depression?).
16
There's always been an enthusiasm gap when it comes to judicial issues. Democratic voters just don't tend to care much about the courts, compared with how much Republican voters do.
That may change if the courts really do start to undo a lot of the victories of past years. Being told Roe v. Wade might go away doesn't seem to motivate many democratic voters, but if it actually did go away...that might.
1
First Justice Kennedy was a staunch conservative with a few notable exceptions. Democrats have no levers of power to prevent Gorsuch 2.0 from being appointed and confirmed.
Second, Congress fulfilling its role would remedy issues leaving the Supreme Court largely out of the mix. Voting rights, unions, campaign finance, health care all areas where legislation restores equity. The awakening of Congress begins with the 2018 elections. Concerned citizens should seriously consider voting for country, the common good over party leanings or narrow parochial concerns.
Finally, political parties produced two deeply flawed candidates in the same Presidential election of 2016. Both parties abdicated their moral responsibility to generate candidates worthy of the office. The parties need a dose of democracy and transparency.
26
I am so tired of the HRC-DT equivalency. HRC is competent, reasonable, prepared, experienced and composed. She knows diplomacy and she understands the job. None of this applies to DT. There was one flawed candidate and one that is the true victim of a seemingly neverending witch hunt.
1
When the Supreme Court becomes sufficiently out of step with mainstream thinking, it'll get sidelined one way or the other. Several things could happen - their rulings won't get enforced, legislation undoing rulings will happen, some justices will be impeached, the court will get packed. Look what happened in the 30's. Once they saw the threat of FDRs court-packing scheme, they got with the program and stopped blocking New Deal legislation.
McConnell and his buddies are engaged in a classic case of overreach. As always, overreach will eventually backfire.
12
"As always, overreach will eventually backfire." Liberal Dems should heed these words. Looking at you de Blasio. Like any bell curve the mass is in the center.
Basically, Mr. Tomasky’s op-ed is a political roadmap for advancing liberals’ (not “Democrats’”) judicial goals. And that’s fine up to a point – it’s been a LOOONG time since the selection of federal judges and particularly of a SCOTUS justice, was anything BUT political, if it ever was. But his roadmap is about as blindly tactical as it possibly could be. It’s like spending all your resources on figuring out how to take a single town in a war of existential intensity without considering that the enemy controls all the roads, all the agriculture, the airspace and all the hot dog stands and porn theaters in and AROUND the town.
If you’re going to be devious about advancing your political goals AND be successful about it to the extent you CAN be, you need to lift your eyes up from the edge of the car-hood and consider the road all AROUND you.
Today, we appear to be hopelessly polarized ideologically, both in Congress and in the electorate; and the polarization favors Republicans, given how our Constitution apportions the power of states and local districts to elect House representatives and the president. That polarization is maintained and stoked by invective on BOTH sides, and the constitutional advantages Republicans hold in how to maximally leverage their electing power are not going to change anytime soon – the last time we ratified a constitutional amendment that hadn’t been lying around for 203 years was 1971. Republicans will …
4
… dominate for many years, certainly for long enough to re-architect SCOTUS for the next half-century. Kennedy? If Trump is re-elected, it’s likely that he will replace at least FOUR justices, not two – as well as almost all of the federal bench. They won’t be liberals no matter WHAT you do.
Mr. Tomasky advises fighting this nomination “to the bitter end” with MORE invective, on the full panoply of hyper-liberal issues. His advice simply doubles-down on the “strategy” of “resistance” that has netted you the recent SCOTUS rulings, a tax bill you despise and regulatory and general policy frameworks that you’re opening your wrists over. It’s not a “strategy” worth the name.
It will not get better for strident liberals. Republican support of Trump is overwhelming.
Instead, pick your most important priorities – seems to me that a good one is Roe v. Wade; and start talking RESPECTFULLY to Trump NOW, before Kennedy’s replacement is chosen. Find conservative judges with hands-off views on Roe. Dicker – immigration and the Wall, defense, whatever it takes. Work on Collins, Murkowski, others. Pretend that the trust Americans put in you to serve as a brake on excessive conservative evolution is merited.
Mr. Tomasky’s advice, if followed, will cause you to feel good about yourselves; and will fail abysmally to bend this intensifying arc of extreme conservatism that, ineffectively challenged, will mold our people and our nation, possibly for most of this century.
7
talk RESPECTFULLY to Trump, really? He despises weakness in an adversary and even more in a sycophant. You can't make deals with him that he will keep and trying to is a fools quest that will disappoint no more then spitting in his eye. He will nominate the most reactionary conservative justice he thinks he can get away with and McConnell will see that it happens no matter what common good he has to sacrifice to attain that goal. Will Collins or Murkowski buck Trump and McConnell? Will any Republican senator? I think the last year + has given us the answer to that question and it ain't a hopeful one. Besides since you turned apologist and supporter of Trumps I would think his success at excessive conservative evolution would be heartening.
"Republican support of Trump is overwhelming."
Laughable. Hardly. There are lots more of us than you. That's why you rely on gerrymandering and stealing outright. And our ranks grow everyday, while yours shrinks.
Enjoy.
The Senate should judge Supreme Court nominees on their own merits, not the merits of presidents who appoint them. Bad presidents have made good Supreme Court nominations.
President Bill Clinton was under independent counsel investigation when he nominated Justice Stephen Breyer. If Special Counsel Robert Muller’s report alleges President Trump obstructed justice, Trump would still have the power to nominate Justice Kennedy’s replacement. A report is not an indictment is not a conviction. The Supreme Court would not be involved in any impeachment proceeding against Trump that might result from the Mueller investigation. In Nixon v. United States (1993), the Supreme Court determined that the federal judiciary could not review impeachment proceedings, as matters related to impeachment trials are political questions and could not be resolved in the courts.
4
I think you underestimate the current Supreme Court if you think they won’t get involved in impeachment proceedings. Times have changed, and the current Supreme Court has proven that it has no respect for precedent, so despite what they may have ruled in the past regarding the court’s involvement in impeachment proceedings, all bets are off with this current gang of loony conservative justices.
4
The Supreme Court as given Trump a string of recent wins,
You're not making any sense.
Perhaps Democrats should just elect representatives and senators and become the majority. Then they can pass laws. Pass medicare for all. Pass gun legislation. Stop using the courts and use the ballot box. Make sure there are Democratic governors and state representative in place for the 2020 census and aggressively gerrymander. Don't try and change the game, play the game better.
53
Given that the Dems have lost most legislatures in most states and the entire federal government, simply exhorting them to win elections is about as simplistic as President Ford exhorting the country to Whip Inflation Now or Nancy Reagan to Just Say No. The Dems will be in the wilderness until they go back to representing all ordinary Americans, not just self-identified victim groups. Bernie would have won because he spoke to the concerns of all working class people, while Clinton and the DNC simply dismissed the white working class as disposable and forgot that deplorables vote.
1
Yeah. Right. You Stop using the court as a ballot box. Next time elect a human and not an absolute embarrassment.
Bleak outcomes? Guess that depends on your point of view. Even many liberals don’t support forcing people to pay union dues supporting an organization opposing their beliefs. The decision on immigration simply upheld the rights granted to the executive. Not really that bleak.
17
The Hobby Lobby case supported the absurd notion that a corporation can have a soul. Do you expect to find many corporations in Heaven? In the Masterpiece case, the Court failed to defend the rights of LGBTQ people to treatment as 1st class members of society. In the Wisconsin gerrymandering case, the Court failed to say no to our broken political system, in which legislators select their voters rather than the other way around. There is much bleakness coming out of the current court, and now it's only going to get bleaker.
24
TW Smith, Not true! It's not just politics. Most people who think about it realize that workers who benefit from having the union represent them for pay, work rules, etc. but are too cheap to pay their full share of dues make the unions weaker and drag down the employment environment for everyone.
27
Would love to talk to the young teachers who sign up for low pay & low job security despite good performance due to a union-driven seniority system.
Many of the issues with education cost per result comes from HOW the unions negotiated for the lowest common denominator instead of the highest performance.
1
Mark my words: one hundred years from now, this country will be two: the coasts as one political entity; the "heartland" as another. Will the separation come via an amicable divorce or through bloodshed? Maybe the attack on the press in Maryland is an opening volley in the war to come.
21
I give it ten years, not one hundred. And it might be time for progressives to buy a gun.
OK, time out. Really, you think there are no liberals in the "heartland" and no conservatives on the 'coasts"? Can a more simplistic trope be any less true? Trump barely won the Midwest you know & he's from NYC remember. You think that NYC doesn't have a large number of conservatives living or working there? God please spare me from people who have no vision and little imagination when observing the complexity of American politics.
1
Like East Pakistan and West Pakistan?
A Newt Gingrich Court - don’t tolerate the other side - destroy it. Systems that are not balanced, be it machines, airplanes, sailboats, or democracies, crash or sink in time.
17
Oh Dear! The politicization of the courts to bring about societal progress is what led to the situation we are now facing as a country. Rather than the sort of compromise that the checks and balances in the Constitution were meant to encourage, SCOTUS has now become the ultimate prize to impose the will of the few upon the many.
Instead, as in the recent election in NY, progressives need to get elected to Congress and change society by actually convincing the voters that their plan is good for the nation.
21
For precisely the same reasons described as the "why" (or the ends) of this argument, I completely disagree with the means! There is zero chance to block this nominee, whomever it will be. Therefore, the Democratic Senators (and other sane, thoughtful individuals in the Senate) should quietly lobby Senators Collins, Murkowski, Flake, Corker, McCain to try to keep Trump's appointment ever so slightly further toward the center (lest they might otherwise vote nay). If the 'left' plays right into the hands of McConnell and Co, by easily confirming accusations of being "unhinged" and "lunatic left" etc., it will only rile and aggravate that vanishingly thin slice of Trump voters (not really, truly his 'base') who ostensibly rationalized their vote for Trump on the basis of the SCOTUS appointment process. If they become more active and enthused over this (a losing proposition anyway), then the GOP retains control of both Houses of Congress in the 2018 midterms. That would be icing on McConnell's cake (and Trump's too, for that matter). Dear Democratic and Independent Party Senators, PLEASE do not try to make a stand here, it will not only fail to block the appointment, but it will also ruin what little chance there is to win back the House of Reps and/or Senate in 2018!
9
Brad, I'm currently agnostic about the best ways for Democratic pols and constituents to 'block' this nomination -- not least because I doubt the ability of current Democratic leadership to provide adequate public context. (e.g. Why didn't Rep. Pelosi and Sen. Schumer point out during Rep. Maxine Waters' recent vilification that peaceful -- if confrontational -- protest of public figures in public spaces is boilerplate civil disobedience that Thoreau and MLK, Jr. would both recognize?)
I also agree with you that the GOP will characterize as “loony, extreme left” many of the most relevant push-back options available to Democrats at present -- from picketing the Senate to depriving it of voting quora. And, as you argue, the GOP will almost certainly weaponize its “loony left” characterizations to disparage Democrats among Independents, moderates, and swing voters.
Yet what bothers me most about this reality is something that you didn’t mention -- namely, that during Obama’s presidency, when the GOP’s Tea Party wing not only unleashed its own volley of “extreme” actions, but also deployed them in ways that emboldened GOP establishment figures like Sen. McConnell to likewise explode political norms, very few GOP pols or pundits deemed them “loony” or ‘uncivil’, or predicted their inevitable alienation of Indies, mods, and swing voters.
Instead, the Tea Party’s excesses were “bold;” its members “freedom-loving patriots.”
Some “loonies,” it seems, are more equal than others.
Mr. Mueller should proceed NOW to subpoena Trump to appear before that federal grand jury. Not only are the chances slight, if nonexistent, that he will ever voluntarily present himself for questioning by the Mueller Investigation's prosecutors, but if the District Court and/or the Circuit Court of Appeals favorably rule(s) for the government's subpoenaing a siting President, chances are that no Senate confirmed, ninth Supreme Court justice will be in place by then. Any deadlocked 4-4 decision of the available siting justices would permit the grand jury questioning to proceed. Alternatively, if that ninth justice was confirmed at that time, he or she would have to be recused from participating in any decision on this matter, having just been nominated by Trump.
Under the first scenario presented, if Trump as generally expected criminally incriminated himself or otherwise performed poorly before the grand jury, any successful Senate confirmation hearings for a Trump nominee could become very complicated and seriously imperiled.
27
The Court will swing further to the right and the Dems are powerless to stop it. Cast the blame where you will, but the fact is that too many folks on the left were happy to stay home rather than vote in the last election, feeling safe in the assumption that no right-minded person would vote for Trump. The Democrats have the numbers on their side and can win national elections whenever they mobilize their voters. But they (we) failed to do so in the last election and now find ourselves in these dire straits. Yes, we must be certain that voters are aware that their are significant consequences for not voting, among them the makeup of the Supreme Court. But first and foremost, we must have a powerful GOTV program in place to assure victory and the start to take our country back from the grip of hatred.
14
The past is the past and we cannot cry over spilled milk. The SCOTUS was never an issue for Dems since I started living in the US (17 years now) or before. Now we can see the stakes very clearly and I agree with all the recommendations on this column. Galvanize the voters and there’ll be a chance to stop any nomination. I just hope RBG stays with us 2 more years.
12
"If Democrats and liberals want to choose a date to begin caring again, Nov. 6, 2018, would be a good day to start."
I would think that might be a tad to late. How's about starting now.
The primaries are over where I live, so I have on my list to volunteer for Stacy Abrams for Governor, Jen Jordan for State Senator, and Betsy Holland for House Rep. Don't have to worry about John Lewis U.S. House Rep, he will run unopposed.
We really all need to become focused on those who we feel will best represent us, and do what we can to support them.
15
There would be much less fear and loathing attached to Supreme Court nominations if all Supreme Court justices were textualists who based their rulings on the ordinary meaning of the Constitution’s text instead of pretending that it requires “interpretation," feigning an ability to divine the intent of the Constitution ‘s authors, or profess they can envision divine or natural rights that transcend the Constitution.
The Constitution includes a Bill of Rights, but is silent on most issues. If Americans think Americans are entitled to a right not included in the Bill of Rights they should use the amendment process to add it to the list. But political party hacks have discovered that achieving a 5-4 Supreme Court decision is easier than ratifying an amendment. Political parties politicized the Supreme Court and should not complain when they get outvoted.
15
The ordinary meaning of the Constitution's text when? Lets not play originalist and pretend that meanings from the late 18th century and today are always the same. Context matters & besides there is evidence that indicates that the constitution was never meant to be the dead document the textualists would like to pretend it is. You really think that for rights to be extended to groups and individuals not present as part of the political structure or considered legitimate actors at the time the constitution was written should require a separate amendment? I'm sorry but I don't buy the idea of the constitution as a rigid document dominated by the past and don't believe that was the authors intent anyhow. To me your argument is an exercise in doublespeak that would do the Federalist Society proud.
4
Textualists are, I'm sorry, insane. Scalia chief among them. The founders understood the Constitution would need interpretation as an ongoing, living document. It is certifiably crazy to think that what 18th century government creators thought about governing makes sense in this world. Yes, the basic principles still apply. But is is no more complicated than the difference between a musket and an automatic weapon capable of killing hundreds in seconds. Or that a corporation has First Amendment rights. What is a "corporation" and who has the First Amendment right ? The employees ? The officers ? The shareholders ? A "corporation" is not a "person" under the First Amendment. That is simple common sense.
"Textualism" is a cover for protecting the wealthy. End of.
The Constitution isn't alive. It is words on paper. It says what it says and doesn't say what it doesn't say. It only changes if is amended.
All Parliamentary maneuvers need to start now by Democrats.
There cannot be a single piece of legislation that moves forward (inclusive of funding the government, or any program) There cannot be a single objection (to everything and anything) that cannot be let to go by. Government must be brought to a standstill. This is too important and goes along with what republicans have been essentially doing since 2010.
There will be blowback, but Democrats must show a backbone (as well as any republican) and not wither until the american people have had their say.
This is what is required.
86
No! It is far more productive to blame all those who didn't bow down and vote for Hillary. They are to blame and they own this and everything else that goes bad in this country.
I'm with you funky but at this late stage, it is too little, too late.
You got to give people a reason to vote for you; not against the other team.
1
You’re right it is! All you need now is the votes!
Got Votes?
1
Lots of excellent points here. I too expected the Garland fiasco to be a much bigger part of the campaign and it never materialized - I imagine many voters did not realize the Supreme Court was on the line and are now kicking themselves.
I would add that not only is Trump under investigation, but he also lost the popular vote, and Dems should be relentless in mentioning this in media appearances. More voters wanted HRC nominating judges. Argue that a president with no mandate to govern cannot make such a critical nomination with no input from the other side. This would not stop the nomination but it would incite voters to get out there in November.
If the shoe were on the other foot, the Republican media machine would have gone full throttle 24/7 to de-legitimize such a President. Instead we meekly act like he actually has a mandate.
171
Let's say democrats take back congress this year and overwhelmingly take congress in 2020 and take back the presidency. Could a democratic president and a democratic congress establish 2 brand new supreme court seats and fill them with progressive justices?
9
My understanding is that a president could try this (FDR did) but it didn't work for him, I'd be surprised if it worked in the future.
4
Yes, FDR tried and failed. But it has been done before successfully. The number of justices is set by congress. No history of SCOTUS interfering. However, it would be a brazen power grab and invite retaliation when the other party came back into power. This cries out for a constitutional amendment.
1
Then the Republicans take over again and add two more seats. And then Democrats come back and add two more. See the problem?
2
Had Marshall not retired and Clarence Thomas not been on the court, not only no Citizens United or Hobby Lobby. Also, presumably, Bush v. Gore would have been decided in Gore's favor, and assuming Gore would go on to win a second term, Rehnquist and O'Connor would have been succeeded by liberal justices instead of Samuel Alito or Chief Justice Roberts. Instead of a closely split court it would have been a rock solid liberal majority. It's crazy that in a country where Democrats have won more votes in every presidential race since 2000 but one, they still lose the Supreme Court.
139
You unwittingly witness the problem: "...they still lose the Supreme Court." It shouldn't be about a political party winning or losing 'above all,' it should be about the national interests. We've become so partisan that the only thing that counts is 'winning' or 'losing, as judged by ridiculous measures.
The cynical actions of Mitch McConnell and his Republican colleagues in the Senate put at risk the reputation of SCOTUS. If it is seen as simply the tool of the party that held a slim majority in the Senate at a convenient time, it may no longer hold the high level of respect in the public eye that it has enjoyed in the past. This would be very dangerous for democracy in the US.
22
The right (and some non-right like myself) believes that that judges should avoid making law, and limit interpretations to situations of actual ambiguity.
Now What? Use legislation and amendments to change the laws of our land, as the constitution requires.
I see the politicization of the court as having been greatly accelerated by Roe v. Wade, where the court did the right thing for women by completely disregarding its responsibility to our constitution. The political fall out has been vast. All discussion about the court has become politicized, our politics have become more polarized. Its likely that neither George W. Bush nor Donald Trump would have been elected if not for that opinion. In short its been a disaster.
Lets learn our lesson and start using laws and amendments to make our country better. The court lacks the legitimacy to make these changes. Using it in that fashion will continue to backfire.
17
Whether you are wary of "legislating from the bench" or not, the fact of the matter is that going forward, this is the only option available to non-conservative voters. I suspect that after 2020, we will see much more legislation meant to counter act SC rulings.
2
Mr. Tomasky hits the nail on its head, namely that liberals hardly ever say before a general election that it is all about the Supreme Court.
On the other hand, even when Republicans partially agree with my liberal views, they always say that their premier reason to vote for the Republican candidate is because of the Supreme Court.
From now on, at least a whole generation of ours has to live under the auspices of majority of right-wing judges, those who interpret laws according to some little lines they pick and chose completely out of context from their good book, be it the Old or the New one.
13
Yes, the GOP has played for keeps seeing politics as a game of accumulating power much more than the Dems and the Dems need to play catch-up. There's one more thing to bring up in fighting the GOP. Roe, Obergfeld and other precedents must be logically off the table. For a long time we've talked about repealing Roe but the fact is that such a decision can't be repealed, it must be amended away. A decision that finds for a new right as described in the Ninth Amendment becomes part and parcel of the constitution just as if it were placed there by any other amendment. Taking away this right has to be done by a super majority of citizens. The principle is Stare Decisis and that must be part of the resistance.
18
Do we have a right to public lands? I know that the Cliven Bundy wing of the GOP would strip us of that right.
At every 5-4 vote, the Dems must raise holy hell about the stolen seat. They have to press this truth as often and as fervently as the Republicans press their lies. Then, when the Dems finally gain control of the White House and both houses of Congress, they can add 2 seats to the SCOTUS--- one to right the wrong of the stolen seat and one to return moderation to the SCOTUS. It's important to lay the groundwork for this, and the time to start is now. The Dems need to learn about messaging (constant repetition) and long-term strategy.
199
It's not just the 5-4 votes but all votes that impinge on constitutionally guaranteed rights. Just take Citizens United for example. It gave corporations personhood which is nonsense and anti-democratic. The people who wrote that opinion ought to be subject to impeachment and removal from office for sheer malpractice. There are numerous similar examples and I think if the GOP goes too far, impeachment of justices will have to be on the table.
32
Yes! Take a lesson from our President about messaging, keep it simple and constant. The illegitimate Justice Roberts.
I and many other non-Republicans do not view the seat as stolen. If Democrats were to do this:
1. It would widely be seen as illigitimate
2. No one will object when Republicans do the same when its their turn.
"Don’t you see, this is our chance! They’ve had the Supreme Court for 30 years. We win, it’s ours! Voting rights, abortion rights, contraception, L.G.B.T. rights, union rights, money in politics, Second Amendment interpretations — we get this one vote, all of those and more will change in our direction!"
this is exactly what is wrong with the Democrats' concept of the judiciary.
Rather than convincing voters (and Congress) of the soundness of their positions, they think the way to legislate is to grab 5 seats on the Supreme Court.
If you want abortion rights (which I agree with), go out and get it passed in 50 state capitals.
36
When convincing voters first has to pass through the magic hall of mirrors that is gerrymandering, you can see why a lot of people don't see this as necessarily the first step.
For a lot of us, the decisions of the SCOTUS are the way that the promises of the constitution - rights that are not subject to majority vote - get upheld and enforced. You don't get one person one vote by electing a different congress - you get it by appealing to constitutional principles.
For progressives, there should be no reason to have to fight for many of the things that conservatives have succeeded into turning back into battle grounds. These are things that appear to be grounded in our understanding of the constitution, and Congress does not rule on such an understanding.
For progressives, abortion "rights" are embodied by the constitution already, and there should never have been a need, nor should there be a need to elect legislatures at any level to provide these rights.
Sadly, tragically, reality says otherwise.
28
Paul Davis,
Where did you study your Constitutional
Law
and a History of the Supreme Court ?
Any "Right" can be taken away from you -
either pass a Constitutional Amendment
or if the Supreme Courts rules against you.
The word Abortion and the Right to an
Abortion are no-where mentioned in the
Constitution. Justice William O. Douglas
admitted such after Roe vs. Wade -
under the shadow of a "Right to Privacy",
which is also not in the Constitution.
Abortion, like so many issues, is an issue
for the States to consider - along with the
natural rights of the babe in the womb.
Progressives invent rights they don’t have.
You have the right to air - it’s free and plentiful. You do not have the right to health care. It costs money and if you want it, go out and work to pay for it. Ditto for lots of other “rights” you think you are entitled to.
The Democratic leadership (establishment, whatever), inside and outside of congress, does not play for, as Mr. Tomasky calls it, keeps. Their objective isn't to win but merely to remain the leadership (establishment, whatever) of the Democratic party. As "playing for keeps" isn't what the party base demands and it involves some risk with regard to their position in the party, it's not what they do.
11
It is one thing to note and report upon incompetence and poor strategy on the part of the Democratic party, something everyone could and should do.
It is something else to speculate on ulterior psychological motivations: unfounded, pointless and counterproductive.
I don't why Democrats do stuff - I care about what they accomplish. Perhaps we can agree that the answer to the second question is "not enough".
This piece, the op-ed piece “This Is the World Mitch McConnell Gave Us” and all of the so many like minded essays appear to minimize or ignore one fact - these administrations and their leaders were elected by the American voters. These policies are the direct consequence of the electoral process and college. These positons that are so abhorrent to some of us are exactly the positions that the majority of Americans (electoral votes) have been waiting for. This is America for the 21st century. It has its roots in our past. Change subjective and in the eyes of the beholder. Vote if America is to survive.
14
But the electoral process is distorted. This very Court missed 3 chances to decide that gerrymandering to skew the vote to the dominant party is wrong, every bit as wrong as denying people a vote that counts due to race or gender. And the electoral college (as does the Senate) gives FAR more weight to every rural vote than to city dwellers. Once we were a primarily rural country, now we are not. When you say this is what we voted for, no, we actually voted for the other candidate but the outdated structures of our system denied us our choice.
12
I understand and agree with your post, but the unfortunately for you and me, the system as archaic as it is, is working as the Founding Fathers designed it. They also understood the problem of corruption- that is one of the reasons they created it -distrust of the masses. It is also highly improbable that it will be changed in our lifetimes.
Our only hope is to take back at least one house of Congress and that means “flipping red states and congressional districts to blue ones.
November will be critical.
The fact that you had to point out that it was electoral votes, and not individual votes that put Trump in office, wonderfully makes the point that you are specifically trying to avoid. Most people do not want what Trump or the GOP are pushing. The plurality of voters voted for Clinton. McConnell shirked his public duty and blocked Obama's nominee. He said he wanted the people to decide. Well, the plurality did not back his horse. It is only due to state borders and census data that brought about Trump's electoral win. You are in the minority.
2
Anyone who thinks the Court is a deliberate, purely constitutional group figuring out a three hundred year document in the 21st century believes in Alice as she travels in Wonderland. Politics pure and simple is the tidal wave driving the Court's decisions.
From Dred Scott to Brown politics first. Oh, some really smart lawyers will hang their fishing hook on some fine legal point followed by an equally smart fisherman pointing out the opposite. Cynical? Yes. Separate but equal reversal and the Japanese Interment case drowned in muddy water with the equally odious Travel Ban approval. HUH? How could that be?Numbers.
And that brings us to the main point: Elections have consequences. And Trump's election will have consequences for many years to come beyond the Court too.
50
The court has always been ideological, but it was not partisan until Bush v. Gore, when 5 members (including the sainted Mr. Kennedy) ignored 400 years of well-settled law of injunctions and their own stated beliefs about the Equal Protection Clause in order to install a Republican president who lost the popular vote ( and lied us into a disastrous war.)
306
The majority’s selective application of the First Amendment would make anyone a bit cynical.
2
one could argue the court shouldn't be deciding these things based on tenuous interpretations of the constitution. the time to put these issues into amendments and form political action groups to pass them has come. we can't rely on who is or isn't on the SCOTUS sharing half the courtiers views on the interpretation - we need new laws and there are clear democratic processes for doing that.
11
Calling Mitch McConnell’s archive the Civic Education Gallery is like calling Trump University an institution of higher learning. I pity any young person who enters its doors.
12
This is it. This is the big one. With Congress mired in dysfunction and the Presidency so narrowly decided, the Supreme Court is the only constant dictating the terms of American society. This will resonate for decades. The Democrats need to get organized now and start winning Congressional seats to block nominees, fast.
104
So, I get that conservative issues in the court apply to women's rights and other similar social issues, but to pander to the wealthy corporations is not conservatism, it's denigration of our democracy.
86
Well Said!
To pander to the Wealthy Corporations and not the Majority of the People's wishes and/or best interests is not Democracy but barely masked Corruption Bribery outcomes!
Certainly nothing that shows obedience or protection to/of the concept "Of the People By the People, For the People"
1
Nice sounding. If the democratic party ran on a pro-Union, universal basic income, medicare for all, free college tuition with costs paid for by strong progressive tax then win would be Uniform. Democratic party has long forgotten they need to have a strong reason for the bulk of the population to vote for them, not that the other side is bad. If both sides are terrible then an abstention is the correct vote.
24
With Trump thinking he is going to decide who the new justice is to carry on the GOP ideology all for the rich we will then have crossed over to a dictatorship form of government like Putin has. For Democracy to work you have to compromise. When the GOP courts side with oil , big corporations and the 99 percent of Americans will be struggling as always and end up living in an American climate change wilderness like our Pope Francis said recently will happen if fossil fuels continue.
48
I lost hope of the Democrats playing hardball during the Clinton administration. The Republicans blockade nominations, hold fake investigations & fake impeachments, repeat fake news, hold the country's credit hostage to political demands, launch wars on false pretences, suppress votes, use the courts to block counting votes. The Democrats respond with civility (which the right wing media then calls arrogance or dishonesty or whatever). Trump has motivated a couple of Democrats like Waters to talk like Republicans, but I don't see a trend.
The truth is that a Republican party that acts like a criminal mob, angering & terrifying voters, works fine for the Democrats, at least for the Democrats who hold power & safe seats. Saves them from actually doing something that might upset the people who pay for their campaigns. The Republicans can pack the court. They could cancel elections. They could hand the keys to the capital over to the lobbyists and go home. The media will keep telling Republicans that liberals control everything because of a few talk show hosts, or because of student protests at obscure colleges. And they'll keep telling the left that the Democrats will fight back any day now...
39
^^^THIS~!^^^
Thanks Martin.
2
This! This! A thousand times, this! The Dems have been weak on the judicial system forever always trying to hew to some moderate position in the hopes that the GOP would play fair and do the same. That was a fever dream and always has been.
207
The American system has been adopted by Latin American governments that followed the model in the XIXth century. They all have similar problems. It is wrong to turn the Supreme Court into an offshoot of the Executive and the Legislature, frequently controlled by the President's party, turning the nominations into political arm-wrestling. The role of the Supreme Court is to interpret and apply the Constitution, not the ideological tilts of the parties that put them in their place, and their voters.
If the nomination of Supreme Court judges would be taken away from the Executive and Congress, and decided by a bipartisan committee of high-ranking judges within the profession, it would be much more difficult to prostitute the Supreme Court, as is the case in America now, and has happened in countries with the American system.
46
Mr. Tomasky, we have a dedicated progressive public eager to get out the vote. The problem is that the fat cats of the Democratic Party have grown too ensconced in their roles to really care about fighting dirty. Schumer sounded - despite his rhetoric, which reverberated with false outrage - tired. The establishment Dems nationwide have brought on these disasters. It’s too late to address these many anomic responses to progressivism in this country. We have to do what the GOP did way back in the early 70s: start a grass-roots progressive movement and begin by electing every established Democrat out of office!!
56
I am quoting from the One-Dimensional Man by Herbert Marcuse, "Once institutionalized, these rights and liberties shared the fate of the society of which they had become an integral part. The achievement cancels the premises."
6
Article II, Section 2, of the U.S. Constitution provides,
“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the Supreme Court.”
Under the Constitution, the President has the power to select SCOTUS nominees AND the Senate has the duty to advise the President about his nominees and the power to approve or disapprove, i.e, consent to or withhold its consent to, the President's nominees. The Senate does not have the authority to ignore the President's nominations.
If a duty to do something means a duty to do nothing then words have no meaning and neither does our Constitution. But words do have meaning, and so does our Constitution. Mitch McConnell's refusal to hold hearings on President Obama's nominee for Supreme Court Justice, Judge Merrick Garland, violated McConnell's constitutional duty as Senate majority leader.
Since this extraconstitutional act has gone unchecked then term limits may be one of the few remedies left to help minimize the impact of the politicization of the process for selecting Supreme Court Justices.
Maurice F. Baggiano, Member of the Bar of the U.S. Supreme Court
286
Thank you for your analysis of the Garland nomination. To my mind, the fact that Judge Garland was denied a hearing after being nominated by President Obama undermines the legitimacy of the Gorsuch nomination and approval by the Senate. The current Supreme Court and its decisions are lacking in legitimacy based on Senator McConnell's failure to perform his obligations as majority leader. All arguments against the current Supreme Court's decisions, especially those based on a 5-4 vote, should state that they are not legitimate.
10
Shouldn't we also use this as a teaching moment: that the Constitution and Art II, Sec 2 specifically, burdens of the US with a terrible structure and process to select a Supreme Court Justice in the 21st century with 330 million people. Why do we have just 9 justices, and not, say 19? What's a better number and why. Imagine with 19, each vacancy and pick would be less consequential and catastrophic. And haven't we learned from recent history that having a President pick the nominee, too often doesn't turn out very well. Imagine a system where the selection is shared on a rotating basis in 22 districts of equal population sizes of 15 million, comprised of about 20 contiguous congressional districts, then let 20 congressional representatives select and vote on a nominee. Imagine also term and age limits. Under this structure, justices would come and go more frequently, and justice would be far less consequential. There are likely dozens of other ways amend the Constitution and change the process, but the structure we have now is a disaster and a horrible burden to pass on to future generations. The core problem is our weak Constitution, and not Trump, or the Republicans, or voting for Democrats.
1
Impeachment of Gorsuch at the first politically feasible opportunity is the remedy for appointment through unconstitutional acts such as the Senate's refusal to provide advice & consent.
5
As I see it, the Democrats will vote for survival of the country if the choice is between Republican dominance or complete destruction. The Republicans do not care whether the country survives and would sacrifice it for partisan dominance. This gives them a tremendous advantage.
A nation gets the government it deserves.
The United States we knew is dead.
173
What is your vision of survival? If it's the kinds of things Alexandria wants, Bernie wants, then I say that's not survival, but destruction. The Dems have lost it. Why do you believe that just because someone isn't a white male they have the answers and understand critical thinking, root cause, and unintended consequences.
One reason I supported Bernie and now cheer the candidacy of young people like Alexandria is that I know Pelosi, Schumer and the others will NOT fight to the bitter end. They will cave. Or republicans Joe Manchin or Heidi Heitkamp will cave. And I'm SICK of it. So let's bring in some new blood who will not cave.
312
That's pretty funny, because if Bernie hadn't run, we wouldn't be in this situation at all. Now his legacy will be to remembered as the "Guy who lost the Supreme Court"
24
Really? I wasn't aware that Sen. Sanders was running after the nomination, except to stump for HRC. I wasn't aware that he decided not to put forth any kind of a campaign message other than "I'm not Trump." I wasn't aware that he made the decision to not campaign in Wisconisin.
And above all, I wasn't aware he made the decision to run the most insider-identified candidate in the recent history of the party in what was clearly a change election.
2
I voted for Hillary in the general election like most Bernie supporters. The question is, will you vote for an emerging democrat who represents Bernie's views in your state's congressional election?
10
Civilization vs Civility.
We may have to choose.
145
The Supreme Court is not a political football to be used to advance one sides agenda over the others. FDR learned this 37 when he was rebuffed in his effort to add justices that would rubber stamp his initiatives. Yet here we are again. There was a time when the greatest, bravest, and brightest amongst us sat on the court. To act as the final arbiters the law. Somewhere along the way disgruntled yet influential groups decided that much like FDR the easiest way to get what they wanted wasn't in the court of public opinion or of moral authority, but merely by stacking the court in their favor. As a nation we should mourn the day that became the goal and state we are in. Shame! Shame! Shame!
22
This article exposes the fact that in the Liberals' planning, just as in the Conservatives' planning, Supreme Court constitutional jurisprudence is a weapon of ideological warfare. This exposure makes a mockery of erudite claims, such as those of Mr. Justice Breyer in his eloquent books on the Supreme Court, that liberal jurisprudence is based on constitutionalist or jurisprudential foundations. Mr. Tomasky's article blatantly exposes the fact that no it's not. Liberal constitutional jurisprudence, just like reactionary constitutional jurisprudence, is a weapon of war, clear and straight.
13
Thanks to the president’s racism and intolerance towards Hispanics, the Latino voting bloc is already energized. Mitch McConnell wasn’t going to allow President Obama the opportunity to fill the vacant Court seat, even if the jurist was a right-leaning Democrat from Kentucky. With the power that McConnell wields today, he seems to be the puppeteer who controls the president. And the Mueller investigation won’t deter Republicans who see the president as a victim. They wouldn’t bat an eye if Mueller had ironclad proof that the president was guilty of high crimes and misdemeanors. They'd call for Mueller's dismissal instead.
76
Mr. Tomasky's article inadvertently tells us a lot: "Consider this counterfactual"--Democrats have retreated into fantasy, playing, 'what if', or 'if, only', to comfort themselves. They've turned their backs on reality, they're faking it: "maintain, even if it's manufactured, some aura of optimism". (Is that a behavior associated with depression?) They're reduced to hoping for luck, like a losing gambler: "Unpredictable things happen all the time". No wonder the Dems are so tight with Hollywood, they've living in La La Land themselves. Are these the people we should trust to govern America? Get real!
7
You seem to think that politics is an all or nothing gambit.
It is not. Like it or not the minority has rights and privileges too. Once upon a time in this country both parties would come together to craft laws that would result in a compromise that most in either party would accept.
In GOP world it’s winner take all. And with far more devastating outcomes to the general public as most of these laws are developed by think tanks funded by the right wing oligarchy.
Yes Democrats appear to have brought a knife to a gunfight. Problem is guns should have been banned on the first place.
6
There was a big difference between Justice Souter even at this stage and those Republicans who came after him; I listened to the hearings. His answer to the question of whether he should not have upheld an odious New Hampshire law while he was Attorney General of the state showed that he would care about the law rather than politics; his answer was that if he wasn't willing to uphold the law, then would have had to resign and that that was true regardless of what he personally thought. That's not the case today.
10
Back in 2016, I thought Obama should have made a recess appointment when McConnell made it clear that he would not allow the Senate to carry out its constitutional role to advise and consent. But that would likely have been seen as too aggressive or hardball. The problem is that the GOP never has a problem with being seen as too aggressive. If there is one thing that Obama can be faulted for, it's that he played it too safe when faced with their intransigence, believing that Hillary would win. Same issue with the Russia investigation. We are all paying dearly for that caution and aversion to risk. Time to take the gloves off.
621
President Obama could have appointed Judge Garland arguing that the Senate, in failing to act on the nomination, had waived its right to advise and consent. Then we would likely still have Garland on the Court and case law clarifying what happens when one party fails to play by the rules dictated by the Constitution. I don't think the Founder's anticipated this level of bad faith.
7
I too thought that Obama should have forced the issue at the time. It would have been beneficial, not to say fascinating, to have the Court decide whether the Senate can simply refuse to perform its duty to advise and consent. But he didn't, and the McConnel rule is the new precedent for Supreme Court appointments. A Republican-controlled Senate will not approve any nomination to the Court made by a Democratic president. They will concoct some reason or another--Benghazi, emails, you name it--to justify not considering a Democrat's nomination. The most important thing for Democrats to do now is to face the reality that this is how it works-- if your party doesn't have a majority in the Senate, your president cannot appoint a Supreme Court justice--and to play the game accordingly.
5
President Obama also clearly knew that “Trump” was installed by the Russians in a coup. That he was illegitimate. He abdicated his constitutional oath to protect the country from enemies foreign and domestic. He should have called it out. That was his solemn obligation. But who knows under what threats he was by that point. It’s likely why he continues to lay low. Clinton too. The are hardly out there pounding the table.
1
Good overview of the only practical options for an event all of us knew was coming, first with the Garland to Gorsuch maneuvers then with the election of Trump. Conservative court control was always one of the platform pieces along with all the pithy slogans that attracted various elements of the Republican base.
(Aside: I'm certain Schumer, like most of us, realize there is no height to Republican hypocrisy. Pointing it out is an exercise, largely ineffective, but necessary all the same.)
23
A Democrat-led congress in January will inspire and build energy and momentum to regain the Presidency and Senate in 2020. Vote blue in November like our future depends on it. Because it does.
237
It would be nice to vote blue in November, but the extreme stance take by the left and right make it impossible. Need a third party of moderate voices!
All valid points and recommendations for Democrats to follow vigorously starting now. I too watched Senator Schumer's low energy response to Mitch McConnell's announcement that he would be pushing through a Supreme Court nomination this summer. So disappointing to see the leader of the Democratic congressional delegation reading in a monotone from a prepared script as if the issue was of low importance. Now is when we need energy and fire. Why not let one of the firebrand Democrats like Elizabeth Warren make the rebuttal if Schumer cannot raise the energy? Now is when we need our leaders to inspire us, or our Trump-hacked fragile democracy will go down the drain. Who do you think should lead and inspire us? Speak up. Support candidates. Vote!
447
Schumer is my senator. He is a highly intelligent lawyer and government professional. It is not in his character to yell and I, for one, appreciate being spoken to as if I were a sentient human being. I do not need to be harangued about what we're facing. I listen to his words. The situation is dire enough. It does not require compensatory demagogic behavior.
Schumer, unlike the vast majority of comments here, knows how government runs, knows the rules, and knows the possibilities...and the obstacles.
And I don't know where Mr. Tomasky was in 2016 but I know where I was: along with my millions of compatriots, I was worried about the Supreme Court. I worry about the Court during every election. I don't require self-appointed pundits to bring me to attention.
24
And yet here we are. It isn't speaking to the choir that's required at this time, nor is a self satisfied sense of decorum that inspires no one. Sorry but yes we do need some rabble rousing and Democratic leaders able and willing to confront the tyranny of team Mitch & Trump. This isn't time for our version of the staid Roman senate since the city is already burning and the time for alarm has passed by.
If party leaders are too old to muster the energy to engage in battle, then maybe it's time to pass the torch to the next generation.
6
All good suggestions and none of them will happen. Schumer is more concerned with being seen as "uncivil" by the Washington Post editorial page than he is with saving the republic. The Democrats should change their symbol from a donkey to a jellyfish.
109
Randy, perhaps my Republican registration will cause you to dismiss this, but I greatly admire Chuck Schumer and Bernie Sanders. Both act on strong personal principle. Democrats will tend to lose as long as they dismiss such people and pick opportunists to represent the party.
1
Donald, I agree with you about Bernie, but I think you are sadly mistaken about Schumer. Schumer is an opportunist with no core principals.
Democrats need to get their core constituencies to understand the stakes and to vote, period.
Red voters are extremely reliable voters.
Our voters say things like "I only vote in big elections", "Hillary cheated Bernie so I'm not voting at all", "No difference between Democrats and Republicans" and other such excuses that doom us at the polls.
In all candor, I'm beginning to wonder if they understand the grave situation we're in, even now.
Vote Or Die 11/6/2018.
588
If the Democrats want to win, they have to come up with a strong, authentic, inspiring, authentic candidate, not a tone-deaf, big-donor controlled, middle-of-the-road "safe" candidate. Blackmail, guilt-tripping and poll-tested hysteria won't work on voters who aren't already convinced. That was proved in 2016. So far, the same people -- Schumer, Pelosi, Obama and the other Clinton enablers -- seem to be in charge, so I am very worried.
9
Core Democratic constituencies either have low voter turnout (Hispanics and blacks) or are too small to make a difference (LGBTQIA? and urban progressives). Bernie recognized that the rest of the people matter, too. Hillary and the DNC just dismissed the majority as deplorables and here we are.
4
The US elected a government entirely controlled by Democrats for 2009-10. What was the end result? A Heritage Foundation corporate welfare bill masquerading as healthcare reform. The solution to this situation goes far beyond simply electing Democrats who seem content to continue the economic austerity that only benefits corporations and the wealthy but with a smiley face for the rest of us.
3
The idea that liberal Democrats should fight to aggressively "protect our rights" is clear evidence that liberals have used the Supreme Court, rather than Congress, to change our country.
That is why liberals are very worried that Trump will appoint another "strict constructionist" who will strike down rulings that were really about creating new rights out of thin air.
Liberals should stop trying to win through the Court. Abortion rights, gay marriage rights, restriction of gun rights, etc. should have all been proposed through Congress. That way the people, through their elected representatives, would have a say in these major changes.
Liberals would then quickly realize they don't represent a majority view in our nation.
It is simple math. The Republicans control the Senate. Trump will get his new Supreme Court nominee approved if he doesn't lose any Republicans. The Democrats don't really have a chance.
34
It's true that the Democrats don't have a shot here. But the majority of Americans do, in fact, support reproductive freedom, same sex marriage, and common sense gun reforms.
71
Well, the radical right certainly does not represent a majority view in our nation. If right-wing Republicans (there are no more conservatives) represented the majority opinion in the US, they would not need gerrymandering, voter suppression,
the end of the Fairness Doctrine, Citizen's United, or Cambridge Analytica and Russian hackers to win elections.
1
Hi John,
Two problems with your comment:
The Democrats [when in control] can pass all the laws they want, but it would amount to no good when an activist conservative court declared them unconstitutional.
The majority of American's lean liberal. Our most recent accurate poll of such, Clinton's larger share of the popular vote, shows this.
McConnell has made it clear that norms don't matter. Only winning does.
Democrats should follow his example the next time they take the majorities.
Add two seats to the US Supreme Court. There used to be six, so it's legal.
Stack the Senate by making DC and Puerto Rico into states. An act of Congress and a referendum and it's done. It's both good politics, and the right thing to do.
Both actions would vastly rebalance the shape of the nation's politics and it would be 100% legal with bare majority votes in Congress and a supportive President.
747
Brian,
Harry Reid made it clear that it was “About Winning” when he changed the rules for appointing judges. Those rules are still in force today.
Next time run a better candidate!
So, you are in favor of Republicans doing this now? Or is it only OK for your party?
"and a supportive President." And how will this come about any time soon?
I'm a liberal and just as upset and shocked as most are. Yet, I don't think means the end of the republic.
Furthermore, as shocked as some liberals might be to hear this, I actually agree with a good number of the "conservative" SCOTUS rulings. Why? Because there is a difference between policy and law. In principle, the SCOTUS rules on laws, not policies. Unfortunately, many liberal policies, while well-intended and "on the right side of history" are still put into place as bad or unconstitutional law. This happens on both sides of the aisle too. So, what liberals will need to do is enact quality legislation at both the federal, state, and local levels which will be constitutionally robust. That may take effort.
112
We often fail to notice that the Supreme Court looks after its reputation for impartiality in its own way. Justices tend to reposition themselves on issues to avoid the appearance of partisanship or judicial legislation. For instance, do you remember how Chief Justice Roberts sided with the liberals on Obamacare? Whatever the political consequences of the law he didn't think the court should appear to usurp the powers of the legislative branch. If the court gets too many conservative justices, watch some of them start drifting to the left to add balance.
2
This will save the reputation of the court but it seems to me that the more extreme conservative judges (of which there seems to be a majority) will put their political belief first and then justify it by finding (or ignoring) what is presented.
I think this sounds nice in theory. Looking at how legislation has gone of the past few sessions, I wouldn't count on any good (robust or otherwise) in the next Congress. There is a reason the Republicans staked their claim on the courts. Easier to manipulate while inviting the least amount of both scrutiny and ire from the public. Much like this last election.
5
AND Dems must remind voters that we do not live under a Parliamentary system. Every vote for Jill Stein or Gary Johnson or Ralph Nader or any other "progressive" third party candidate is actually a vote for the Republican.
Our system provides a binary choice. That's it.
516
"Our system provides a binary choice. That's it."
Then it would behoove the Democratic party to choose wisely and well. They blew it big time in 2016.
11
It’s not so much our system per se, it’s that these two private companies the Ds and the Rs have locked everyone else out.
And they are entrusted with safe guarding democracy- with no impartial referee. That’s not going so well, is it?
The Republicans have abdicated their sworn duty- and nothing other than the minority party taking control again can stop them.
Scary stuff.
1
Blew it by winning the most votes for president?
The left has won the culture wars and they are not going backward no matter who is on the court. Roe v Wade was reaffirmed in the Casey decision and the threat to abortion rights is minimal. No one on the right cares anymore about gay marriage-the worst we feared did not happen so that is a dead issue. Citizens United was and is a free speech issue and I bet a liberal court would not overturn it.
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Citizens United was not a free speech issue, Corporations are not individuals, they are incorporated to protect the individuals who own them from financial and legal jeopardy.
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From your lips to God’s ear, Douglas of Arizona. You are confident that reproductive rights have been irreversibly affirmed. As Citizens United shows, so what? The Court changes and new things are affirmed. Or lateral attacks permitted, so abortion is affirmed but made inaccessible. Douglas, You think same-sex marriage is secure because, “no one cares anymore.” I agree with you that, “the worst didn’t happen,” but you can’t let a good wedge issue like that just die. And once they’ve rounded up the immigrants and incarcerated the underclasses, who better than gays to go for next? Finally, the mental gymnastics required, as you do, to super-empower the political clout of the wealthy by anthropomorphizing corporations, all in the name of free speech, is, to me, head-spinning. I suspect we have many large changes coming. I don’t see a viable Democratic upswell big enough to overcome gerrymandering and voting machines and Fox faux News and targeted meta-data, even should two Republican Senators be found to just say no on the first nominee. It’s a rare occurrence, but I’m glad Mother is dead.
If the left has won the culture wars Trump would not be president. The rest of your argument therefore ....
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