Mitch McConnell and his cohort of conservative allies believe the elevation of Amy Coney Barrett to the Supreme Court is the capstone move in their long game. Between Barrett creating a meaty 6-3 conservative majority on the high court and the more than 200 right-wing judges the GOP senate has elevated to the bench, they think they have cemented the rule of a wealthy, white minority for another generation at least.
Who knows? They may even be right.
There is no doubt that Justice Barrett is all progressive nightmares made flesh, a gut-punch replacement for the beloved Justice Ginsburg and a setback of enormous proportions. She is the doom vote on any number of crucial issues and, now, a key part of Donald Trump’s final firewall if next week’s election isn’t cut and dried and is plunged into the courts. The final stop on that train is now Trump campaign headquarters, marble pillars and all.
Chief Justice Roberts now has the freedom to lean left on upcoming decisions regarding LGBTQ rights, voting rights, guns, and even Roe v. Wade. Barrett has his back; even if Roberts disappoints the GOP base again, the vote will remain 5-4 in favor of the conservative majority, thanks to Trump’s newest addition to the court.
Even the most timorous 2016-damaged Democrat is feeling cautiously optimistic about Tuesday’s presidential election, though that optimism is hedged by a thousand potential catastrophes that ring the outcome like an invading army. All know this by now.
Yet, even if Joe Biden wins so many Electoral College votes and the outcome is so clear that no lawsuits make it out of the cradle, any victory celebration must be tempered by the vivid Democratic Party failure represented by Justice Amy Coney Barrett and those 200+ Trump-appointed federal judges.
Sure, one can point to straight-up buzzard luck when it comes to the Democrats and the Supreme Court. Trump getting three chances to nominate justices is unspeakable. The Washington Post’s Ruth Marcus likewise notes, “Part of this lopsidedness reflects the luck of the presidential draw — Richard M. Nixon had four appointments, Jimmy Carter none — or bad retirement timing on the part of justices.”
That’s an excuse, however, and not a reason. The Republicans, and in particular the Federalist Society along with other far-right judicial activist organizations, have spent decades creating and augmenting an assembly line for the mass construction of conservative judges precisely like Barrett, and like Kavanaugh and Gorsuch before her.
Not only did the GOP correctly perceive the courts as the high ground in all political battles to come, they have toiled long and hard to put themselves into a position where they could pounce on opportunities like the one provided by Donald Trump over the last four years… and pounce they did. Anyone wondering why the GOP establishment has put up with Trump’s destructive mayhem for so long can stop asking.
These people are not fools. Year by year, the GOP has become more and more the party of angry, older, rural and suburban white people. As that core base has flexed its muscles in the primaries, an ever-growing majority of the country has come to spurn the racist radicalism pouring out of the Republican Party. Millennials and Gen Z are about to become the largest voting bloc in the country, and white people en masse are on the verge of becoming the minority for the first time ever. Seizing the courts mitigates the loss of political power many within the GOP rightly see as an inevitability.
Democrats have spent those decades believing fights over judges happen in the Senate, while Republicans have labored to make sure the fight is already won by the time it reaches that chamber. Chuck Schumer and his party bring a knife to a gun fight even when in the majority, and Schumer can only peer over his readers in dismay as he gets rolled like a fat Cohiba.
If this hard lesson is not learned, like, yesterday, then it won’t matter much if Biden wins big next week. The Democrats lack the infrastructure to exert their will over the judicial branch in the manner the GOP has, now in historic fashion. Trump’s lasting legacy — an ultraconservative judiciary from root to branch — did not fall from the sky. The GOP is a minority party, but their activism on this matter of the judiciary has been superior, their money and energies far better spent.
I think of the anti-choice activists who have darkened the doors of clinics like Planned Parenthood chanting “Praise God” and pamphleting everything that moves. They have been doing that for decades, every single day no matter the weather, one single issue focused on with religious fervor. No distractions, no side tents, only this bit of sidewalk and the will to stand upon it for years until you get what you want.
With Barrett, those activists got what they want after so many years of trying. The decades-long arc of anti-choice protest hews closely to the arc of right-wing judicial activism that has culminated with this bleak moment in history. We are seeing the darkness reaching for the darkness and finding itself at long, long last triumphant.
If this lesson can be seared into the hearts and minds of congressional Democrats, however, all is far from lost. First principles: The only way to beat these modern Mitch McConnell Republicans is to fight like them, only better. If this lesson is learned, then the outcome of Tuesday’s vote has the potential to save this hare-brained country even from itself.
If Biden manages a win so stout that the Democrats regain control of the Senate majority, then it’s hats over the windmill, because it has to be. Abolish the goddamn filibuster, and prepare to put two progressive justices onto an expanded Supreme Court. Republicans have shown us exactly how to govern by dint of sheer gall, and by an affirmative nose count. Let the Democrats show how much they have learned.
“Expand the court,” demanded Rep. Alexandria Ocasio-Cortez last night. “Republicans do this because they don’t believe Dems have the stones to play hardball like they do. And for a long time they’ve been correct. But do not let them bully the public into thinking their bulldozing is normal but a response isn’t. There is a legal process for expansion.”
“There will be hell to pay!” is the wail from the fainting couches in the offices of Democratic officials, and they are correct; the GOP will bring the full weight of its financial/propaganda juggernaut to bear against any move to expand the court. In the words of one particularly sadistic Republican, “Bring ‘em on.” People are already paying hell under the far right rule of the moneyed few, and that hell will only expand if this kangaroo Supreme Court is allowed to stand without a proper, fair and thoroughly legal adjustment.
The outcome of the 2020 election — along with a decision by Democrats to finally stop being doormats — will determine if the elevation of Justice Barrett to the high court is a generational event, or merely a speed bump on the way toward wresting this nation from the grasp of a radical, tyrannical minority.
If the Democrats secure a mighty win, they have a mighty choice before them: Govern, or go home. They cannot govern with a broken filibuster and this twisted high court in place. Changing that is the prime priority, or else all other priorities will fall to ashes. It would not be a coup, but a bold and necessary move to make the nation’s most powerful court look and act a bit more like the country it serves.