Taking on the next court

Senate Majority Leader Mitch McConnell, R-Ky., says he’ll bring President Donald Trump’s next Supreme Court nominee to the floor before the November election. There’s nothing Democrats can do to prevent that, and by themselves they don’t have the numbers to block confirmation.

On a party-line vote, assuming Sen. John McCain, R-Ariz., is absent, Trump’s nominee would win confirmation 50 to 49. By that slim margin the court would be enabled to plunge the nation into a morass of plutocratic rule and evangelical bigotry.

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Could a stray Republican vote no? If the nominee appears likely to join the four right-wing justices in potentially repealing Roe v. Wade or Obergefell v. Hodges (the decision that legalized same-sex marriage), then perhaps Maine’s Susan Collins and/or Alaska’s Lisa Murkowski could be persuaded to cross over. So as Democrats highlight the threats to abortion rights and gay rights in a nationwide campaign — which could also benefit them in the midterm elections, most particularly in affluent suburban districts — they should raise the issue to stratospheric heights in Maine and Alaska and any other state where a wavering Republican might be found.

Assume, though, that Trump’s pick is confirmed, and we are thereby facing decades of legal diktats rooted in the religious rigidity and social Darwinism of the court’s right wing. How should the Democrats respond?

First, should they manage to retake the Senate in November, they should refuse to confirm any Trump nominations to the federal bench, including the Supreme Court. If a few Democrats break ranks, the Senate leadership should do what McConnell did when Merrick Garland was nominated by President Barack Obama: refuse to hold hearings or to bring the nomination to a vote. We can label this strategy the McConnell precedent.

Second, assuming the right-wing Gang of Five is firmly ensconced on the court in 2020, and none has suddenly taken leave to meet his maker, Democratic presidential candidates should embrace what we can term the FDR precedent: Call for legislation to expand the number of justices from nine to 11.

President Franklin D. Roosevelt advanced this idea early in his second term, after the court’s conservative bloc (the “Four Horsemen” with the help of a swing vote) shot down most of the core elements of the early New Deal on 5-4 votes. Roosevelt’s fear was that they would continue on that course and strike down Social Security and the National Labor Relations Act, both newly enacted.

Roosevelt’s proposal drew a furious backlash, not only from Republicans but from the Southern Dixiecrat Democrats in Congress, and he was compelled to withdraw it. But just the threat of his proposal had a real effect on the court, which soon thereafter surprisingly upheld the NLRA, Social Security and other key New Deal legislation.

One of the problems with FDR’s court-expansion proposal was that he didn’t introduce it — indeed, he may not have conceived it yet — when he ran for re-election in 1936. Democrats should make it part of their national platform in 2020, so if their candidate ousts Trump that year, the new president can claim a mandate to expand the court.

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This is, admittedly, a controversial course of action. It will mobilize Trump supporters, particularly evangelicals, to turn out to vote in 2020 (which most of them would do in any case). But it also could mobilize low-propensity Democratic voters if the campaign makes clear just how much the court’s reactionaries have it in for them. This is the strongest course Democrats can take to short-circuit decades of the court diminishing our freedoms and afflicting our lives.

Harold Meyerson is executive editor of the American Prospect.