I'm writing this while watching the Senate confirmation hearing on Judge Brett Kavanaugh. As usual for Supreme Court confirmation hearings, it is fascinating to watch. However, also as usual, it is likely going to be absolutely meaningless, because Republicans are going to have the votes to confirm him in the end. The Democrats are fighting hard, but they're going to lose this one, to put it more bluntly. It was essentially a done deal before the hearing even began.
Elections have consequences, of course. One of those is the president's power to appoint judges. This is now a turbocharged process. Democrats are on the powerless end of the stick right now, which is why Kavanaugh will be confirmed. Moving forward, there are three big ways to fight back against this situation: vote more Democrats into office, Democrats in office need to champion better laws, and don't be so shy about suggesting amendments to the Constitution. Those are really the only choices, when you look at the big picture.
The first is pretty obvious. Elect more Democrats -- enough to take back the House, the Senate, and (eventually) the White House. If Democrats controlled the Senate, Kavanaugh would not be confirmed. All other Trump judicial nominees would be in peril as well. Elections matter. But Republican voters are much more inclined to consider court appointments when voting than Democrats. This has to change, if Democrats are ever going to win this game.
Conservatives have taken a very long view on judicial appointments. They started this effort back in the 1980s, in fact. That's when the Moral Majority (and groups like them) began to see that one good way to fight Roe v. Wade was to see to it that judges were installed who mirrored their own views on abortion. We may be at the end of this road, with Kavanaugh, but it has been a very long fight for them, one they have been fighting for over three decades. They've seen their fight as a marathon, not a sprint.
Democrats simply don't have the same viewpoint. They don't consider the judicial appointment question all that much when voting. This may be starting to change -- the unprecedented takedown of Merrick Garland certainly woke a lot of people up to how important the issue was, and how far the Republicans were willing to break established precedent to fulfill their aim of getting as many conservatives on the bench as possible.
Equally important (if not more so) is to elect Democratic presidents. After all, that's where the judicial nominations originate from. Don't like the fact that Trump is getting so many judges confirmed? Then replace him in 2020, and elect Democrats for the next two or three terms. That will put the shoe on the other foot -- especially if they have a Democratic Senate to work with.
The political pendulum swings. Eventually, Democrats will get their chance at bat again. When they do, the turbocharged factor is going to help. When I use this term, I am speaking of the two "nuclear options" the Senate has gone through in the past decade. Both parties bear some of the blame (or credit, depending on your point of view) for dropping these nukes. First Harry Reid removed the filibuster from all judicial nominations below the Supreme Court level. Then Mitch McConnell did the same for Supreme Court nominees. If he hadn't, we would likely currently have two vacancies on the Supreme Court, since Democrats would have been in the mood for payback after Merrick Garland's treatment.
Sooner or later, Democrats will get the same opportunity that Republicans are now enjoying. And they'll do precisely what Republicans have been doing under Trump -- rushing as many judicial nominations through the Senate as fast as possible. Trump has set records for the number of judges confirmed, but that is a direct result of the two nukes. The process has been streamlined, which is why it has speeded up. But it'll be just as fast when Democrats eventually get their innings.
The second strategy is, after electing enough Democrats to take back at least one chamber of Congress, to push back on Supreme Court overreach by passing laws directly challenging their decisions. If a decision strikes down a law on technicalities, then go back and fix the technicalities and pass the law again. If they punt on a tiny legal issue, in other words, then force them to deal with the broader question by pressing the case.
It has to be said, this will probably fail, at least at first. But if Democrats can even take back the House, then it will be useful politically, if not successful legislatively. By passing a bill directly challenging a Supreme Court decision Democrats feel was wrongly decided, it will focus attention on the underlying issue. This will cause the Republicans to argue the other side, which may be wildly unpopular. It may even (this works only in rare cases) cause so much embarrassment on their side of the aisle to actually get a bill through the Senate (or even get a Republican president to sign it). The key to such rare victories is to mobilize the public on your side in a major way. But to mobilize them, you've got to have a solid bill to rally around.
The final strategy is also mostly a political one, but it can be used to great effectiveness. If the Supreme Court wrongly decides a case on basic constitutional grounds (rather than just ruling on a technicality), then there is only one real remedy to fix the problem: a constitutional amendment.
The Supreme Court interprets the Constitution. But the text of the Constitution includes every amendment, from the Bill of Rights forward. So if the Supreme Court says "this is not constitutional" then a constitutional amendment which specifically states that it is now the law will completely tie the hands of the court. If it is explicitly stated within the Constitution itself (as an amendment) then the court must decide legal cases based on the new amendment, and not on anything they've previously decided.
So where is the unified Democratic Party push to pass a constitutional amendment to overturn Citizens United? Small efforts may exist in Congress, but so far the party has not made it a top priority -- despite the fact that most Americans simply do not agree that corporations have personal rights under the Constitution (and the Bill of Rights contained within). That is merely one example of what I'm talking about.
Proposing a constitutional amendment can be a purely political act, even if you would happily love see the amendment ratified. Most amendments are not successfully ratified, because the bar is so high. But that shouldn't stop Democrats from merely proposing them. A simple "corporations are not people" amendment is pretty easy to understand by most people, and would undo the damage done by Citizens United. But that's not the only good example.
How about a privacy amendment, which guarantees every citizen's privacy from both corporate America and the government? I'd bet that would be a pretty popular idea. It also might just help shore up Roe v. Wade. How about an amendment legalizing marijuana and regulating it exactly the same as alcohol? Bet that one would also be wildly popular right about now.
If Democrats don't like Supreme Court decisions, and they think they've got the public squarely on their side, then they should push as hard as they can for a constitutional amendment. Even though most (if not all) of these efforts will ultimately fail, merely bringing the subject up will reap political rewards. The Republicans have known this for a long time, and have wielded this political weapon quite masterfully, at times. Remember the hoo-hah about the anti-flag-burning amendment? Or how about the anti-gay-marriage amendment? Both were used to great effect to turn Republican voters out at the polls and excite their political base. Both, in fact, were so popular (at the time) that they caused Democratic politicians to get on board (see: Dianne Feinstein, flag-burning). The flag-burning amendment got fourteen such Democratic votes in the Senate, one vote short of the two-thirds majority it needed. That's a pretty effective political bludgeon, you have to admit.
Democrats can do the same thing, if they'd only prioritize such efforts. Corporate and dark money in politics is pretty much reviled by everyone, no matter their political bent. A "corporations are not people" amendment could garner wide support among the general public, which would leave Republicans to explain why they were fighting against something a majority of their own voters supported. There are any number of issues that could be amendment proposals, in fact. Protecting equal rights and equal pay in the workplace, for instance. Protecting the rights of people with pre-existing conditions to buy health insurance would be another wildly popular idea. Banning the use of non-disclosure agreements in sexual harassment cases might be another. Pick any issue that the Republicans are going to have to play a very uncomfortable defense on, and boldly propose an amendment to fix the problem.
Or do so in direct response to Supreme Court decisions you disagree with. Citizens United won't be the only one to target in the near future, that much seems certain at this point. Democrats are fighting hard in today's hearing, but they're not going to win this battle. The court will soon have a 5-4 conservative majority, for the foreseeable future. They are quite likely to overreach on some issues. Democrats can fight back against these, and everything they do in this regard will have a serendipitous effect on their other efforts.
Get more Democrats elected. Enthuse Democratic voters by making the courts a major issue. Pass laws to force Republicans to defend things that the public doesn't agree with. If that doesn't work, then propose new amendments that an overwhelming number of people would agree with. This will all have the effect of getting more Democrats elected, eventually. It's a virtuous cycle, in other words.
We're going to lose this confirmation battle. But that doesn't mean we should weep and wail and then do nothing else. This, as the conservatives have proven, is a long game. It's a marathon. Democrats -- the politicians, the party at large, and the voters themselves -- should start acting like it, and gird their loins for an extended political battle. Republicans are already fighting this fight, so it's time to fight back using all the weapons available. That's the only way things are ever going to change for the better.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
