On a recent episode of Amicus, Dahlia Lithwick tackled the big question of how to fix American democracy with Elie Mystal, a writer for the Nation, and Adam Jentelson, former deputy chief of staff for Sen. Harry Reid and the author of Kill Switch. Their discussion, recorded as part of the Crosscut Festival, covers the filibuster, voter suppression laws, court reform, and more. A portion of the conversation, which has been edited and condensed for clarity, has been transcribed below.
Dahlia Lithwick: So, maybe the courts didn’t completely bring the house down in 2020, but I don’t see any reason to spike the football and say that can be replicated. And I wonder if we can start with this big elephant-in-the-room question about court reform. Elie, I know you and I have talked about it a million times, and the kinds of things that need to happen—and oh, by the way, need to happen in the next year—seem to be unlikely to happen. And I know you’ve had real criticism of the Biden court commission, which is thinking about some of these solutions for 180 days. But I wonder if you could briefly give a sense of what court reform would look like and why it is you’re so discomfited by the idea of thinking about it for a really long time.
Elie Mystal: It is insane that the people currently in power, which happens to be, for this brief moment in time, a Democratic administration and a bare thinnest possible majority in the Democratic Senate, are thinking about these problems in terms of legislative action. The courts—not just the Supreme Court, literally any two-bit, just out of law school, 35-year-old Trump judge that was put on the court specifically because of their blogging experience—any one of them can frustrate for the entire country anything in the Congress does. Any single bill that gets through that difficult House and the completely minority-ruled Senate. Even if you get something through those two bodies, one district judge can put a temporary injunction and stop the whole thing. Liberals should know this. That’s why there’s no wall. And so for us not to be willing to even seriously consider expanding the courts, both at the Supreme Court and the lower court level, is just political malpractice. Anything that the Democrats want, anything that liberals want, anything that voting rights activists want will be frustrated by the Republican courts.
Now, there are great reform reasons for expanding the courts far beyond the point of political tit for tat. If we look at the lower courts, we are long overdue for an expansion of lower courts. We used to add a couple of judges here, a couple of judges there on the various circuits about once every 10 years. We created whole new circuits. We haven’t done that since 1990. The judicial conference, which is an independent, nonpartisan body of retired federal judges and big thinkers, says that we need at least 75 judges. Just 75 district court judges like now, today, just to handle the load. We are a litigious people. And as there are more of us, there are just more cases to handle. So at the bare minimum, we should be talking about expanding the lower courts just to lighten the load, the burden on the judicial system.
And then obviously at the Supreme Court. When we talk about reform, one of the things that we have to realize is that our process where every time a Supreme Court justice dies, it’s an all-hands-on-deck, full-on, go-to-the-mattresses fight in the completely ridiculous Senate—the only way to stop that is to put enough justices on the Supreme Court that their replacement becomes a manner of rote, as opposed to a desperate political battle.
If you had 19 justices, if you had 29 justices—if you think that’s too much, that’s exactly how much the 9th Circuit that covers California and most of the West has. If we had 29 justices, then every time one of these octogenarians dies—which is not something that should be that surprising, that 80-year-old people die—it wouldn’t be an all-hands-on-deck political fight. So we should expand the court for those reasons as well. Now, last thing, to the extent that the current Democratic administration might get to choose a fair majority of those new justices: Well, that’s just part of the bargain.
Adam, I want to give you a chance to defend the completely ridiculous Senate, but I also want to ask a version of this question, which is what do you do about filibuster reform when Joe Manchin and Kyrsten Sinema just say no. How do we do the big structural fixes when the institution declines to be fixed?
Adam Jentelson: Yeah, I’m not going to defend the Senate. It would be much healthier for the Senate if it would confront its own shortcomings. Part of its great weakness is its ability and its eagerness to wrap itself in its own myths and get high on its own supply about how great it is. In the mind of senators, everything it does is wise. If they take too long to pass a bill, that’s wise. The fact that it took 87 years after the end of Reconstruction for them to pass a civil rights bill, that was considered the cooling saucer effect.
And that self-delusion hides the fact that the American people were ready for civil rights decades before the Senate was willing to pass them. This is something that we don’t learn much about, but as early as 1891, there was majority support in the House and Senate and a president willing to sign a bill to eliminate poll taxes in the South. In the 1920s, the House of Representatives started passing bills to end lynching by overwhelming margins. They came over to the Senate, where they had majority support, but they were blocked by the filibuster. There were bills to end poll taxes. There were bills to end workplace discrimination in the 1930s and ‘40s. And the key here is that they also had extremely broad public support. Gallup polled federal anti-lynching laws in 1937 and found 72 percent of the American people in support of federal anti-lynching laws. In the 1940s, they polled federal anti–poll tax laws and found upwards of 60 percent of the American people in support.
So, the Senate is deeply broken and that dysfunction that it imposed on civil rights during the Jim Crow era is now what it imposes on every other issue. So how do we fix that? I’m actually encouraged by the fact that we are so close to having 50 votes for filibuster reform. I was there in 2013 when we did a version of filibuster reform for most judicial nominees. And at this point of 2013, we certainly weren’t as close to having the votes to do that kind of reform as we are today to doing broader filibuster reform. All this focus on Manchin and Sinema—I have a different reaction, which is, Oh, we only have two votes to get? That’s not bad.
So look, there’s no downplaying how vehement they’ve been in their opposition. And they’re going to feel pressured, not just from the left or from the grassroots. They’re also going to feel pressure from their peers in the Senate. They’re going to feel pressure from other Democratic senators who are up for reelection in 2022. Sinema’s fellow Arizonan, Sen. Mark Kelly, is up for reelection because his election was a special election. Mark Kelly wants to be able to go to voters in 2022 with a robust array of accomplishments to make the case for his own reelection. And so I think that what’s going to happen in the coming weeks and months is that the question that Manchin and Sinema are facing is going to be extremely acute. And the pressure is going to build probably in a way that neither of them has ever experienced in their entire careers. So the last two votes are always the hardest to get, and they certainly are presenting a challenge, but the fact that we’re this close to me is a positive sign.
So, this is a really interesting throughline. Elie and I probably have done 100 conversations in the last eight years where we would just start by setting ourselves on fire because nobody cared about court reform and nobody cared about courts at all, at least on the progressive side. And we’ve seen a huge public reckoning. So I think the needle is moved, and there’s a real dispute about whether it’s moved fast enough and hard enough to talk about serious structural reform, but it’s moving. And Adam, you’re making the same point about filibuster reform, which is that things were unthinkable 10, 15 years ago are on the table.
And people understand. It’s salient; it’s resonant. And I think H.R. 1 makes all of democracy reform salient in a way. And yet I have this sense that there’s this big roadrunner/coyote doomsday clock that’s just ticking down faster than public enthusiasm. These are all such wonky process questions, and people care about their pocketbooks, and they care about COVID. These are third-order issues. Is it too late to do anything, or can people still be moved to sense the kind of urgency that you’re describing?
Jentelson: I absolutely agree that this is a race against the clock. In my view, filibuster reform has to happen or at least start to happen. It may be an iterative process before they arrive at a reform regime that works. That process has to start in this summer. I live in fear, as a former congressional staffer, of August recess, this five-week break that the Congress always takes, and what lies on the other side of that. Often you come back after that five weeks and the world looks completely different. That’s what happened in 2009 when Democrats went home. The rise of the Tea Party basically happened in August of 2009, and they came back facing a vastly different political landscape than when they left.
So I completely agree that it’s possible that we will get to November 2022, and Democrats might lose their majorities. And that could be it. That could be the window closing. The optimistic view is that we have between now and then to try to get all this stuff done. And Democrats have a trifecta. I would love for Republicans to join in this effort too. I don’t think it’s completely out of the question, but I’m certainly not holding my breath. The upside is that for the first time in several years, Democrats actually have the power to do the things that we want to do. It’s going to take aggressive leadership from President Joe Biden and Majority Leader Chuck Schumer in the Senate. There’s no way this happens without them putting this on their backs and driving it home, but they have every incentive to do that.
And the encouraging signs we’ve seen from President Biden are that he is coming around to a different way of doing politics than he basically did his entire career, but that’s understandable. He’s the guy. He’s got to deliver. And under those circumstances, the incentive to produce results becomes very, very strong. This is a race against the clock, but we’ve still got a long ways to go. There’s still a very good chance that we’re able to get this done in the time that we have, or at least do enough to keep our democracy going and give ourselves more bites of the apple down the road.
And Elie, I want to ask the same question with a slightly different frame. If the conventional wisdom that I keep hearing about the same problem Adam has described on democracy reform is that the American people need to read the sentence Roe v. Wade is overturned before they get on the float in the parade that says, “Oops, structural court reform is a good idea.” We’re not going to see that this term; we’re not going to see it next term. How do foment a sense that these are exigent questions? We don’t have time to think about it for three years.
Mystal: Look, the problem is that there hasn’t been aggressive leadership on these critical issues. And my worry is that it is actually Joe Biden that needs to see “Roe v. Wade is overturned” before he gets it. And if that’s what we’re waiting for, Joe Biden himself to get it, it’s already too late. I hate to be the guy to always bring this up, but we’re talking as if the clock strikes midnight, midterm elections, 2022. Man, the clock strikes midnight if Pat Leahy gets hit by a bus; that’s when the clock strikes midnight. The Democratic majority is so thin that if any one of these senators, many of whom are themselves quite old, should pass away, living in a state where they can be replaced by a Republican governor, that’s it, it’s over, goodbye.
So when we’re talking about the timeline here, we’re already late, and it’s not clear to me that the people in charge get that we’re already late. I guess the reason why these people don’t get that they’re already late is that they do not get that they cannot win an election with just white people. There are entirely too many Democratic senators and establishment folks who do not see the existential threat to their own jobs if these voter suppression laws are allowed to stand. They think they can still convince that middle-of-the-road white person that left the party during the Reagan years. And they’d never come back, but they’re still trying to go get that Reagan Democrat. They don’t understand that the base of their party is these Black and brown people who turn out for them. They don’t understand that they cannot win if they do not have overwhelming turnout from Black and brown communities and win those communities 8-to-2 if we’re talking about Black people and 6-to-4 if we’re talking about brown people.
They can’t win without those numbers. And they don’t understand that. And so they don’t realize that these voting suppression laws are an existential threat to their own positions.