Punching ourselves in the face to save the Republicans from ruining their manicures
If you wonder why I think it's more likely than not that a new Democratic administration will let Trump completely off the hook for all of his crimes (and why I think an impeachment vote is the only accountability he will ever see) this is why. Democrats are more concerned with being seen as hypocrites than they are in seeing justice done and these cowardly, white nationalist Republicans fully defeated:
Republicans are steamrolling Democrats on judges. But the question of whether to be as cutthroat as the GOP is already splitting the party as the 2020 campaign ramps up.
The left has been radicalized by the Republican offensive, with activists and several presidential candidates eager for payback against Senate Majority Leader Mitch McConnell the next time Democrats take power.
But centrist Democrats and the handful of institutionalists still roaming the Capitol want the party to set a different example than the GOP, not mimic it.
“When you think about Merrick Garland and what McConnell has done to the Senate, there’s a lot of feelings of vengeance and revenge," said Sen. Dick Durbin (D-Ill.), the No. 2 Senate Democrat. “We just hope the better angels of our nature will prevail.”
The party doesn’t have to settle the question just yet. But if Democrats take the Senate and the White House in 2020, their choice will determine whether the party can begin to reshape the federal judiciary after President Donald Trump and the GOP spent years stocking it with young conservatives.
And if Democrats do decide to embrace the playbook deployed by their Republican counterparts, it will ensure the Senate’s unique traditions continue their long erosion.
"I wish we could also get back to 60 votes,” said Sen. Doug Jones (D-Ala.), who needs to appeal to Republicans to win reelection next year. “We need to aim higher. We need to get back to that.” Restoring the 60-vote threshold to confirm nominees would make it even harder to bend the judiciary leftward.
Liberals, meanwhile, are weighing whether to gut the few bipartisan norms still standing by expanding the size of the Supreme Court and completely eliminating the ability of senators to have a say on judges from their home states.
“Democrats should not play by a different set of rules from Republicans,” argues Sen. Elizabeth Warren (D-Mass.), a 2020 candidate and member of Democratic leadership. “We can’t live in a world where the Republicans twist everything their way whether they’re in the majority or the minority and the Democrats just keep trotting along. That’s not working.”
Democrats are still seething over McConnell’s decision to block Garland, President Barack Obama’s Supreme Court nominee, from even getting a hearing. They’re also mourning what they say is a breakdown of other Senate customs, particularly on the so-called “blue slip” process that allows each senator a chance to veto nominations for judges in their home states.
McConnell has prioritized the courts in a way that’s essentially unheard of, first by stopping Obama from filling vacancies, then by prioritizing them over difficult legislative gambits. He’s also unilaterally changed Senate rules through the “nuclear option” to speed up confirmation of Trump’s judges.
Even as Trump captured the nation's attention last week with his attacks on four Democratic congresswomen, the Senate quietly confirmed its record-setting 43rd circuit judge. Incredibly, there are now only four Circuit Court vacancies and Republicans are shifting to filling the lower, 111 District Court vacancies.
The aggressive push has left Democrats smarting and powerless until they can grab back power. They concede that there’s not much they can do right now to stop Republicans from putting their stamp on the federal judiciary.
But the party is tossing out ideas both within the Senate and on the 2020 trail for how to reverse Trump’s influence on the courts, ranging from changes to the Supreme Court to pledging to only nominate judges who would uphold the landmark abortion ruling Roe v. Wade to pressing conservative groups like the Judicial Crisis Network to reveal their donors.
“I don’t consider it vengeance,” said Sen. Mazie Hirono “I consider it doing something about the reality of what’s happening to our courts.” | Zach Gibson/Getty Images
“I don’t consider it vengeance,” said Sen. Mazie Hirono (D-Hawaii). “I consider it doing something about the reality of what’s happening to our courts.”
Some Democrats see the prospect of changes to Senate tradition as a balancing act.
Sen. Amy Klobuchar (D-Minn.), a 2020 candidate and a member of the Senate Judiciary Committee, blamed Republicans for changing Senate rules and called many of Trump’s nominees “really problematic.” When asked if she would consider rotating or expanding the Supreme Court, Klobuchar said she was “open to looking at those” but also said that as president she hopes "to put forward good strong nominees that are going to follow the law and get [bipartisan] support."
Sen. Dianne Feinstein (D-Calif.), who is in line to be Judiciary Committee chairman if Democrats win the Senate, said she hasn’t “thought about it. Because that jinxes it for sure.”
But Feinstein also signaled her reluctance to duplicating the GOP approach.
“I’m not into payback. I never have been. And I’d just do it as fairly as I possibly could, that’s all,” she said. Whether to sideline Republicans “has never been discussed. Much to our credit.”
“I’m not into payback. I never have been. And I’d just do it as fairly as I possibly could, that’s all,” Sen. Dianne Feinstein said. Whether to sideline Republicans “has never been discussed. Much to our credit.”
Brian Fallon, executive director of Demand Justice, a liberal advocacy organization focused on the courts, said that Feinstein should be using her leverage now as the top Democrat on the Judiciary Committee to remind Republicans that Democrats will borrow their tactics if and when they return to power.
“She won’t say that, she won’t threaten that, because she wants to preserve the option of punching ourselves in the face again and let Sen. Graham veto President Warren or President Harris’ judicial picks,” Fallon said, referring to Senate Judiciary Committee Chairman Lindsey Graham.
You think he won't?
Another issue that’s talked about less often on the national stage but is crucial on Capitol Hill is the blue-slip process.
Republicans have all but done away with that senatorial prerogative for circuit court judges, who represent multiple states, prompting a stark increase in “no” votes from Democratic senators, among the rank-and-file and presidential hopefuls.
Democrats are unsure whether they would restore that tradition to the appellate courts should they regain power or perhaps do Republicans one better and scrap the practice for lower level courts, too.
Republicans are skeptical that Democrats would even consider restoring the Senate’s judicial traditions and have attacked them for being the first to go “nuclear.” A Democratic majority eliminated the 60-vote threshold for most judicial nominees in 2013; McConnell triggered the nuclear option on Supreme Court justices four years later.
When asked if Senate Democrats would restore blue slips for circuit judges, Graham replied: “Absolutely not.”
“They’re the ones that changed the rules to go to the majority vote,” Graham said. “We couldn’t get 60 votes for anybody for the circuit court and the Supreme Court. Those days are over.”
I wouldn't count on it. Democrats want to be seen as the courtly statesmen who never stoop to the level of the right-wing barbarians. But it's not a responsible or intelligent way to deal with the current political crisis. If they win in 2020, it may be their last chance to administer the coup de grace and end this dangerous escalation of partisan warfare. If they lie down, they will likely not get another chance. The GOP has some fascist pieces of work waiting in the wings --- guys like Josh Hawley and Tom Cotton. If the Democrats don't understand what they are dealing with by now ... well, let's just say the prognosis for our democracy is not good.