The Democrats are threatening the country again.
Chuck Schumer says that “nothing is off the table” if Republicans fill the Supreme Court vacancy created by Ruth Bader Ginsburg’s death. Ed Markey is explicit: Leave the seat open, or we will abolish the filibuster and pack the courts.
Mitch McConnell set the precedent. No Supreme Court vacancies filled in an election year. If he violates it, when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.
— Ed Markey (@EdMarkey) September 19, 2020
Some conservatives are ready to sit down at the table with Markey and Schumer. David French and Adam White, two conservative, pro-life attorneys, have separately proposed this very deal.
Don’t vote until after the election, they counsel. If Trump wins, confirm the nominee. If Trump loses, offer a quid pro quo to the Democrats: GOP leaves the seat open if Dems promise to not pack the courts by adding more seats.
This is not a good deal. This would be like the Dodgers promising to bench Mookie Betts in the World Series if the Astros promise not to cheat again.
Republicans would be promising to not do the very thing a Senate is expected to do and which we know, with total certainty, the Democrats would do — vote on a Supreme Court nominee when there is a vacancy — in exchange for Democrats promising to not do an unprecedented power grab. It’s extortion.
These threats are getting old.
When Democrats last decade passed a law that required everyone to buy health insurance, and their lawyers were arguing in court that refusing to buy insurance, which one cannot buy across state lines — that is, intrastate non-commerce — was interstate commerce, Democrats had the audacity to claim that the other side was illegitimate.
“Court’s legitimacy at stake on ACA,” liberal lawyer Elizabeth Wydra wrote at Politico. “Obamacare is on trial. So is the Supreme Court,” warned Jonathan Cohn at the New Republic. “The legitimacy of the Supreme Court” is at stake, he continued.
Rule our way or we declare you illegitimate.
When abortion cases were before the Supreme Court this past summer, Schumer threatened the court: “I want to tell you, Gorsuch,” Schumer said. “I want to tell you, Kavanaugh: You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”
“There would be political consequences, political consequences for President Trump and Senate Republicans if the Supreme Court with the newly confirmed justices stripped away a woman’s right to choose,” Schumer continued.
Decide wrong, and we will blow things up.
Democrats have done this for the 2020 election.
If Trump wins, it’s stolen, and we’ll riot. Vote our way or get riots.
And here it is again.
Give us a seat — do something we would never in 100,000 years do for you — or we’ll break the court.
At some point, one has to stop giving into the threats. Schumer’s threats should have stopped working long ago because they’re not threats–they are promises of what Democrats will do anyway, sooner or later. Why pay the ransom if the Joker is going to kill the hostages anyway?
On the judiciary, Democrats are not cute black mama bears that will leave you alone if you leave them alone. They smeared Kavanaugh. They tried to prevent a vote on Gorsuch. They abolished the filibuster on lower courts. They filibustered, en masse, conservative Bush nominees. They smeared Thomas. They smeared Bork and defeated him in order to save Roe. And their side turned the courts into unaccountable super-legislatures by drafting Roe.
They have never needed provocation from Republicans. When Ted Kennedy, Harry Reid, Schumer, and Pat Leahy assault the old norms and practices of the judicial wars, they aren’t reacting to Republicans, they are responding to their activist base.
“The Groups,” as Democratic Senate staff call them with deference and occasional trepidation, are well-funded left-wing organizations, with abortion giant Planned Parenthood as the preeminent member. It is the proddings of “The Groups” (who seek a court that will advance a culture-war agenda that couldn’t advance through democratic means) and not the imagined provocations of Mitch McConnell that Democrats are reacting when they smear nominees, launch filibuster campaigns, abolish Senate rules, and otherwise degrade the process.
So the only acceptable deal is impossible because it would involve going back in time. Republicans can’t merely ask for the status quo from Democrats. If they want Republicans to hold off filling a vacancy, Democrats would need to magically undo what they had done. They would need to surrender their illegitimate takings.
We would need to turn the clock back.
First, turn it back to 2013, to before Reid abolished the filibuster on lower-court judges, and in the process, abolished all Senate rules by declaring a bare majority can change the rules. In a deliberative body, rules that can be changed by a bare majority are no rules at all.
Then turn it back to 2003, to before Schumer instituted a blanket filibuster for Miguel Estrada and any conservative judge — especially the Hispanic, black, and female judges.
Then turn it back to 1991, to before when they smeared Clarence Thomas. And then turn it back to before 1987 when Kennedy led the smear against Robert Bork and sunk his nomination.
Then turn it back to before 1973, when the court stopped pretending to care about the Constitution and admitted to caring about abortion more, to invent the right to abort a baby, even up until the moment before birth.
If somehow the Democrats could undo that, then Republicans should consider giving up what they have every right to do. Unless somehow they can undo the 50-year culture war over the courts led by the abortion lobby, Kennedy, and his lesser shadows in the Senate, Republicans should tell the Democrats to just cast their no votes, give their angry speeches, and stop threatening the country.
