On Friday evening, Ruth Bader Ginsburg died. On Friday night, Mitch McConnell announced his intention to fill her seat quickly. By Monday night, it looked like he would have the votes, and by Tuesday morning, that was confirmed. The only question left seems to be: What can the Democrats do now? Slate staffers came together to discuss.
Jordan Weissmann: Just as we were all getting ready to chat, Mitt Romney decided to remind everybody that he is, in fact, a Republican from a heavily religious, pro-life state—he said he’d support a confirmation vote, which means that pretty soon, we’re all but certain to be looking at a 6–3 court. So what, exactly, do we think Democrats’ goal should be now? What do they need to fight to accomplish, since this train is definitely leaving the station?
Jeremy Stahl: What’s the most effective thing to do from an immediate messaging perspective in this hearing? Do they boycott it? Do they attend and ask the same question about RBG’s dying wish for the next president to seat her successor over and over again? Do they pretend everything is normal and treat this nominee like they would any other? Do they protest it and get arrested like John Lewis might have? Given that they are Democrats, they probably just show up and act normal and pull a few lame and random stunts that look like dumb histrionics that in no way meet the moment.
Dahlia Lithwick: I am struck by the confluence today of pieces that say Dems totally got rolled in Bush v. Gore (Toobin in the New Yorker) and Dems totally got rolled over Merrick Garland (that’s just true) and Dems totally got rolled in 2016 election interference and Dems got rolled on Mueller. It feels like Dems getting mad about getting rolled is all I am reading. And yet, this round, I am not at all sure what Dems could actually DO.
Jim Newell: I was wondering about this question yesterday: Treat this as illegitimate and don’t engage the process, or go through the usual motions of meetings, vetting, confirmation hearings, etc. (My understanding is that Senate Democrats themselves are still debating this, too.) At first I thought just ignoring the process altogether was the right thing to highlight the power grab. But I don’t think they can run this on process alone for the next however many weeks. They have to lay out the stakes here: A vote for [X Nominee] is a vote to eliminate your health care, a vote for [X Nominee] is the end of Roe. Make this vote as painful as possible ahead of an election!
Also: I don’t think any Democrats will meet with the nominee.
Julia Craven: I’m also not quite sure what they could possibly do outside of maybe, just maybe, turning the news cycle in their favor some way. Even then, though, that won’t stop a new justice from being seated.
Weissmann: If the only words Democrats say for the next four weeks are health care and the right to choose, that might be enough to turn out the vote in suburban North Carolina.
Lithwick: I agree that the performative nihilism of simply refusing to participate is probably the only Big Message, and that absent a clear and coherent daily drumbeat about the fact that a minority-majority Senate has now hijacked a minority-majority court and you will lose the Affordable Care Act this summer as a result, it will get old very quickly as a visual.
Weissmann: Right. Also, nobody cares about process except partisans. That’s the ultimate lesson of the Trump years. And partisans already think this is illegitimate. So just talk about how Republicans and their unelected apparatchiks in the judiciary are going to send us back to the days of back-alley abortions and health care rescissions.
Lithwick: The whole Brett Kavanaugh fight was about process, remember: documents that were not released and an investigation never completed. Who remembers that?
Newell: It was my job that summer to cover it, and I don’t even remember it.
Tom Scocca: One thing they could do, which they failed to do entirely with Neil Gorsuch, is to tie the nominee to the power grab itself.
Lithwick: They tried that with Gorsuch, tried to get him to feel shame about Merrick Garland. He mumbled something about the judicial branch and we moved on.
Craven: “Do you feel bad playing a role in denying Justice Ginsburg her dying wish?” is quite the question to be asked on a national stage.
Weissmann: It’d go viral. Great fundraising stunt. ActBlue will get several hundred donations. I mean, that’s the other thing here. Keeping up the pressure on this fight might keep the small dollar fundraising spigot—which started gushing after RBG died—flowing for the next several weeks.
Lithwick: I think the larger point is the asymmetry point: Dems still value and prize the court as an instrument of justice. Same problem they had four years ago. They don’t want to start calling the court a joke because the court just delivered DACA and Title VII protections for LGBTQ Americans. So it’s an internal battle: How do we invalidate the court while propping up the court?
Weissmann: Personally, I think it’s time to invalidate the court. And the one upside of this whole disaster is that’s becoming a more mainstream idea within the Democratic Party. The scales have fallen off some people’s eyes.
Lithwick: But if you are a civil rights group fighting in yearslong suits, you don’t think that.
Scocca: The Democrats are so invested in trying to resuscitate the court’s legitimacy that they have failed to capitalize on its glaring illegitimacy. The first time Gorsuch signed his name to a 5–4 majority, they should have said, “Nope, only see four valid signatures here.” A real opposition party would have had Merrick Garland writing and announcing shadow opinions throughout the past four years, but that would have meant sacrificing the minor helpful and productive things he could have done by quietly holding his lower-court seat and performing reasonable jurisprudence there.
Weissmann: I mean, that would have been delightful performance art. But I think people would have found that weird after a while.
Craven: Would one way to play it be pushing for more justices to be added to the court? Perhaps, if they start digging into that narrative, should Joe Biden win in November, they at least have a national basis for it. And they can point to this current debacle as a reason why.
Weissmann: I think court packing—or, long term, reform—has to be on the table. Right now, Chuck Schumer is saying, “Nothing is off the table,” which is his line about nuking the filibuster as well. The question is whether that’s a long-term or short-term possibility.
Lithwick: The question to me isn’t so much whether structural court reform is on the table, of course it has to be. The question is whether to talk about it explicitly for election purposes.
Stahl: If and when they get the political will to go down the route of invalidating the courts, the options seem to be to add seats or to just start passing laws that explicitly end judicial review and ignoring the court’s response, as Christopher Sprigman proposed Monday and Ryan Cooper proposed Tuesday. None of these options are good, but unless we want 20 years of minority rule, eventually they’ll have to do something, right?
Weissmann: Right. I think jurisdiction stripping is interesting, but it’s tricky since Republicans could always just give jurisdiction back. Then again, they can also just repack the court, too.
Craven: Twenty years? Amy Coney Barrett is pretty young, isn’t she? This isn’t the point, but it is terrifying that 20 years might be too short of a time frame for how long this will affect the country.
Stahl: I guess I’m thinking Samuel Alito and Clarence Thomas won’t likely stay on the court into their 90s, Julia. You’re right, though, it should be at least 20 years of minority rule.
Lithwick: There seems to be a sense that saying the words court reform will hand Trump the election.
Weissmann: Democrats could possibly take a page from Pete Buttigieg on this, who managed to talk about the issue while making it sound incredibly boring, by stressing the need for a long-term nonpartisan reform.
Newell: I understand the idea that Democrats making a credible threat to expand or reform the court is one means of stopping this pick, but I do think it’s underrated the amount of work that will go into making that “credible.” I don’t see 50 Democratic votes for that at the moment, and I suspect court packing, if you polled it today, would be unpopular (though it could eventually be polarized into a wash). Biden, on Monday, refused to answer on court packing, something he’s said he was against in the past, because I don’t think he finds it a helpful thing to be talking about just before the election.
Scocca: Biden’s answer was very good, I thought! The Democrats have a real habit, as Jordan alluded to earlier, of deciding they’re going to lose a fight and just skipping ahead to losing the next thing, rather than making a spectacle.
Lithwick: I worry that discussion of structural court reform is a process answer, and zzzzzzzzzzz, see above.
Stahl: I think zzzz is maybe good, though, in this instance? It preemptively sort of blocks any attempt to depict reform as the outrage of outrages. If it puts people to sleep, how can it be so radical?
Weissmann: I think talking about structural reform of the court energizes and terrifies very politically engaged people, but is zzzzz for most voters, which is really the sweet spot I’d prefer here.
Craven: I really just think the Dems should cut the fuck up about this. I really do. At some point, for the sake of not losing these battles constantly, they have to set aside a bit of their deference to decorum and ask themselves: What would the GOP do?
Newell: The most Democrat-ass thing I’ve seen this week is the radical proposals about blowing up the court to add … two seats. Then you’re losing 6–5, dummies! Four seats or bust.
Weissmann: But I agree, Tom, Biden’s answer—which was not to answer, basically—was good. And honestly, I don’t particularly want him wading into this fight over potential court packing. His job is to be a calming presence right now.
Lithwick: I do think the spectacle has to just center on minority rule: The GOP lost the popular vote in six of the past seven elections and appointed 15 out of the past 19 justices. Now they want 16 out of 20. And most Americans want the ACA and Roe.
Scocca: It seems pretty dumb to remove any friction from the confirmation process before Trump has even unveiled the nominee. Remember how Kavanaugh made his public debut by licking Trump’s shoes and telling ridiculous lies about the rigorous selection process on camera? The new nominee will be, by definition, a stooge for the most corrupt president in living memory, and there’s value in making that person stooge it up in public.
Craven: The Dems don’t have control of the Senate. But if the GOP didn’t have control of the Senate, they would be all over Fox News and CNN yelling about this.
Scocca: Another thing Senate Democrats could do is ask the nominee about the Judicial Crisis Network and if they know who pays for it.
Weissmann: Also, not to be crass here again, but making the confirmation process a spectacle would definitely be good for fundraising.
Newell: Agree. A little less energy on what you could theoretically do in 2021 with the assumed governing trifecta and a little more energy toward making pain felt now.
Scocca: That was Biden’s wisdom: fight the fight that’s in front of you, don’t waste time and let the Republicans change the subject to what might happen in the fight that comes afterward.
Newell: Republicans are getting what they want, but they are not supercomfortable with it! I believe they’re having conference lunch at the National Republican Senatorial Committee building Tuesday because it’s easier for staffers to pick them up and drive them off without them getting harried by reporters.
Lithwick: I do think that the grief over RBG is enduring in a way I didn’t expect. I am not sure women will let this go in a week?
Stahl: I also think that when the tragic consequences of what this vote means begin to happen, the spotlight will quickly and brightly return to the court.
Weissmann: Do the Dems actually have to do anything special to turn this hearing into a spectacle? Or are the stakes just so high that it’ll become one naturally?
Lithwick: Yeah, if everyone agrees that the big message and the big action is refusing to treat this hearing as ordinary, what does that look like on the ground?
Newell: I think on the ground, for the process writ large, that means not meeting with the nominee. It means not putting on the ruse of, “We’d like to know more about this person, just so we know if they’re good.” I think they have to be clear that this is a political play to roll back the liberal state (but use a better term) and show how this nominee will fit right in.
Scocca: Adam Jentleson in the Times was arguing that they should set themselves up to deny unanimous consent to make the whole operation run as slowly and awkwardly as possible.
Lithwick: Just don’t engage with the nom at all. The message is just: “They may or may not be qualified but, we cannot do this now.”
Newell: Pat Leahy and Cory Booker should play Mario Kart on a projector while she’s giving her opening remarks.
Scocca: It seems like there’s a lot to be said for making Mitch McConnell work for it. Just because he’s cynical and ruthless about applying the rules doesn’t mean it’s not a chore for him to do it.
Lithwick: They tried some of that around Gorsuch but then got bored, because process zzzzzzzzzzz.
Stahl: Yeah, I think doing the procedural hoops is a way to mire things in boredom and recriminations. Mario Kart is a much better idea.
Weissmann: See, I think that message is too process-y again. Just keep talking about the right to choose and health care. Can we get Yoshi to talk about the ACA? That might be the grand synthesis.
Scocca: Another message that’s worth hammering comes from Bret Stephens, honestly. I am stunned to have typed the sentence. But the column was Stephens writing about how Mitt Romney should think about the question (Mitt evidently did not read it). And the key point was this:
If a central conservative complaint about the federal judiciary is that it has arrogated too many powers that ought to be in the hands of the people, how can conservatives justify entrenching their power in the courts in the expectation that they’re unlikely to win at the polls?
Lithwick: Also a process point.
Scocca: If this judge you’re appointing is so great, why do you have to ram them through now? Why don’t you just win the election, with your popular support, and do it then?
Lithwick: The answer is: abortion.