Democrats Can Still Play Hardball

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S1: I wanted to talk to Jamelle Bouie about what happens now with Ruth Bader Ginsburg Supreme Court seat, because from the moment he found out she’d passed, he’s been focused on the political bind liberals are in right now.

S2: I what thought this was all about Friday night. So I’m watching a movie with my wife and I get a text from a friend who’s like over, you know, we’re screwed. And I was like, what are you talking about? And then I open up Twitter and pretty quickly saw what was happening. And my immediate part was that, oh, yeah, of course, they’re going to try to fill the seat. It’s sort of the rational move, right? If the situation were reversed, I expect Democrats to do the exact same thing. You can’t pass up that kind of opportunity.

S1: Jamal writes for The New York Times, but he grew up as a chess player. And when he talks politics, you can tell he sees the way the Democrats have been boxed in here by President Trump, who’s committed to putting forward a nominee, and by Mitch McConnell, who’s committed to giving that nominee a vote. And he says, OK, what’s the next logical move?

S2: We talked about Mitch McConnell as some sort of evil genius. But I think if you look back at the Garland blockade in 2016, you’re looking at this current attempt to fill the seat left by with bitter Ginsburg. These are both big gambles. He’s taking a risk. He’s hoping that he can keep his caucus unified enough to put a justice on the court. He’s hoping that this doesn’t galvanize Democrats into action. He’s hoping that it doesn’t lead to his party losing the White House and the Senate. If all these things go right, then we’ll look back and say this is a bold, brilliant move. But if they don’t, then we can look back and say this was an avoidable disaster for the Republicans. So if you take that perspective that this all these steps are risk, that they come maybe with great reward, but also with real cost, then, you know, the response is, well, how do we raise the Pabrai, raise the price of the risk? Right. How do you make it cost even more? And to the extent that I have a big critique of Democrats, I don’t think they think enough about how do you how do you make the other side pay for the risk that they’re taking?

S1: You seem like someone who’s thinking about the strategic opportunities that are presenting themselves right now.

S2: Yeah, I mean, I just by disposition, I don’t think that there are ever no moves available. Like the point at which there’ll be no moves available is when, you know, the United is no longer a democracy, but as long as that’s not the case, there’s always going to be some move available. It may not be me. I have a high chance of success, but I’m a strong believer that in politics, you should not you should not bound your behavior by its likelihood of success because no one ever really knows what’s going to end up being successful or not.

S1: Today on the show, if Jamal is a progressive grand master, he’s going to walk us through the Democrats chessboard he thinks have still got moves left. I’m Mary Harris. You’re listening to what next? Stick with us. After Ruth Bader Ginsburg died, there was this question, could the president and Mitch McConnell convince Republican lawmakers to vote on her replacement in spite of the upcoming election? And over the last few days, that question seems to have gotten an answer. While a couple of senators have said they oppose a vote like that, most Republicans seem ready to go. That leaves congressional Democrats to make the next move. Jamal says they’ve got an attitude problem to fix first.

S2: Some of it, I think owes to the fact that a lot of them are older and they have this experience of vision of politics that just no longer applies and hasn’t applied for some time. Some of it is a sincere belief in institutions and a sincere belief in norms, so to speak, without an understanding that at times like this, you may have to break norms to create new ones, you know, unappreciated.

S1: Some of the writing this week that made this point that what we’re seeing now, this Republican focus on filling a Supreme Court seat really quickly to establish a supermajority of justices, it actually reveals the weakness of the Republican Party, how under threat they feel. But I wonder a little bit whether you agree with that.

S2: I do agree with the interpretation. I think these are not the moves of a movement that believes it could win popular majorities. Right. This is not something you do if you think that in the next election of the next several elections, you’ll be able to secure support from the public. This thing that you do when you believe that the public is against you, that the only way you’re going to preserve your ideological project is by entrenching it in the least democratic part of the entire system.

S1: Part of the reason Jamelle calls the judiciary the least democratic part of our entire system is because of how heavily we’ve all come to rely on judicial review. That’s the idea that the Supreme Court is the arbiter of what’s constitutional and what isn’t. This is not actually a power that’s laid out for the court in the Constitution itself. It’s a power that’s been cultivated for years, leading to what Jamelle calls judicial supremacy.

S2: I think if you look at the present period since World War Two, what you’ve seen is less of pushback and contestation and more just gradual acceptance of this idea that, yeah, the courts say the Constitution means that we all operate kind of within those constraints. We may try to nudge things in the margins, but we kind of accept the basic premise. And although I understand why it would unsettle many people to see that equilibrium unsettled, I think that it is a good thing for it to be unsettled, that we have to always remind ourselves that the United States is not actually a judge ocracy. You know, we it’s a it’s a it’s popular government. And when one institution, unpopular government, ceases to work for those purposes, then the right thing to do is to push back on it. And actually, what you’re saying is that’s the way it’s supposed to work, right? Abraham Lincoln and William Seward, ahead of the 1860 election, blasted Democrats for attempting to basically write slaveholders rights into the Constitution. And they launched a fierce attack on the federal judiciary in an attempt to sort of lay the ground for reversing it. If they were to win office. And they did, they expanded the Supreme Court. They created new circuit courts. They created new states to secure Lincoln’s victory in 1864. I mean, this is how politics is played out in the 19th century. And kind of the most famous example of this, FDR, you know, we talked about court packing as if it failed, but it worked. But even if he couldn’t secure a majority among lawmakers, FDR threat was credible and it moved the Supreme Court to back down. And eventually he was able to replace most of those justices himself for presidents who represent a governing majority as decisive ones who want to, you know, bring a new vision of the political order to bear, this is what they do. If there’s a President Biden in the Democratic Senate, I think this is the move they have to make.

S1: You’ve written one way to deal with the coming super majority on the Supreme Court if Democrats are elected in the Senate and the presidency is to simply ignore what they say, which seems like a pretty. Intense move, but of course, it’s happened a lot in our past, in fact, states have done this relatively recently. There was an abortion case this year where Louisiana basically created a law that went against a Supreme Court ruling just a few years ago. So questioning the Supreme Court actually isn’t all that rare, but it feels to me like the federal government ignoring the court would be a pretty major step.

S2: Well, wouldn’t we say ignore the court? It’s I think it’s worth, you know, being specific about what that means. So so take Shelby County v. Holder in 2013, and the Supreme Court ruled that the preclearance Section five of the Voting Rights Act, which required select states to submit any election law changes for preclearance within the Department of Justice, has to look them over, make sure they’re not violating anyone’s civil rights, and then the states can go forward. Supreme Court said this was unconstitutional. It violated some made up doctrine called states have to be treated equally. Not a real thing that exists, but the court says it does. The responsible administration had the Congress say, I guess too bad, I guess the court said it was unconstitutional. I guess it is. But the other response he could have had and this would have been very controversial, is to say on the court’s decision with regards to the Department of Justice and Shelby County, Alabama, we accept that the court thinks that Shelby County should not be held to the preclearance standard. We do not think this applies to other places. And so we are going to accept the ruling in the particular case of Shelby County vs. the Department of Justice. But we don’t think that has any bearing on the law. Hmm. So it sort of it’s what it’s doing is you’re making a distinction between the court’s ability to settle cases and the court’s ability to bind people to an interpretation of Supreme Court. And the basis for making that distinction is that the Constitution doesn’t actually say that the court is the sole arbiter of what is constitutional. The Constitution strongly suggests that other constitutional actors, the president, the Congress, can also interpret the Constitution. And it’s kind of implicit right in the business of lawmaking executive executing the law. When Congress writes and passes the law, they’re making a statement about what they believe is constitutional. Sometimes they’re wrong and the courts are there to say, hey, that’s not right, but sometimes the courts are wrong and the Congress and the president are there to say, hey, that’s not right.

S1: There are presidents who have ignored the Supreme Court who we might not agree with. Now, like I’m thinking of Andrew Jackson, he ignored a Supreme Court ruling about indigenous people and their right to sovereign land and his ignoring that led to the Trail of Tears.

S2: I think there is this desire to to put things outside of politics, to be able to say, well, we can develop a standard, a rule by which this thing is acceptable and this thing is not even through using the same mechanisms of operating along the same principles. And I think that’s impossible that any any political system, any standard for politics is going to allow things that we think are very bad. I think that we should not be have such a rigid adherence to saying that what the courts says, the Constitution is the Constitution. This would mean bad outcomes in some cases. And I think the response to that is just to as much as possible fight those bad outcomes in the realm of ordinary politics. There are limits to this, of course, in those limits generally, I think, are tied to our kind of collective expanding sense of what a democracy requires. So I just don’t know how you get around the basic fact that. A lot of things are possible democracy, many of them are very bad, and although you can use the courts to put limits on some things, that runs the risk of using the courts to put limits on everything. And so there’s a balance to strike. And the only way to determine that balance is through the conduct of politics. It’s like it’s not an easy thing. You can even you know, some radical theorists might make the argument that it’s sort of the problem with Western liberal democracy is that it does have the space for the violation of human rights and especially the rights of sort of those outside of the European polity, those those who are black or native or whatnot. I don’t know how you get around that.

S1: So let’s talk strategy, like if you’re a progressive, there’s a lot of talk you mentioned it about court packing, the idea that if Democrats win the Senate, win the presidency, they should be talking explicitly right now about adding seats to the Supreme Court. And I guess I’m wondering if you think that’s the right place to start. Like, I I was thinking about how are we here in this situation that you’ve laid out so well where people haven’t voted for these kinds of majorities, but they exist. And I was thinking, do you start with court packing or do you start somewhere else, like do you start with the Senate, which is weighted to be more Republican, even though that might not reflect what’s actually happening in the country?

S2: I I think there’s a case I think I think you should just do all of it, that many things are needed and necessary. So, you know, you just do everything. If you’re going to prioritize things, I think I might go in this direction. Things that are needed in necessary D.C. statehood, offering referendum referenda to Puerto Rico, the Virgin Islands, the American territories writ large over whether they want to be part of the American Union or whether they want independence, and then based up the results of that, you know, offering statehood or or not expanding the size of the House of Representatives, which is sort of a thing that’s been needed for a very long time and. Expanding the lower courts, so on just a practical level, the United States population has grown by 80 million since the last time the courts were expanded under Jimmy Carter. Maybe it’s grown by even more than 100 million, but the population has grown substantially since the last big court expansion did. There’s actually a very real need for more judges at the district and circuit court level to just create more circuits, create more districts, which would have the side effect of basically nullifying most of Trump’s additions to the judiciary. And that can basically stand as a threat to the courts. The Supreme Court to say that if you stand in our way, we will just add more seats to your higher court to if the Democrats make these reforms, they are going to be busy.

S1: Do you have any sense that the people in power in the Democratic Party have the stomach for this kind of reform?

S2: I think some do. I think some of the younger members, too. But the older members, I just think are still struggling to get beyond a world of politics that doesn’t really exist anymore. And I think broadly, this is probably a topic for a different conversation. But I think broadly, Americans, they treat the constitutional order as static, that this is what we got in 1787 and this is what we have. That’s just not true. That the government we have now is would be unimaginable to the framers, unimaginable to the people who constructed the reconstruction amendments. But you’re arguably kind of a second framing of the Constitution that. We are that you can think of carto style, a framing of that idea as kind of an ongoing process that each generation kind of add to own innovations to the constitutional system. And I would argue that it’s been a long time since we’ve had any innovations in the constitutional system that we’re operating with a set of institutions that were made for that was made for the middle of the century. With that, with we are operating with a set of assumptions that was made for the middle of the century. That part of the problem in our politics right now is that there has not been any real change either directly to the text of the Constitution via amendment or by kind of a quasi constitutional changes like the civil rights legislation was. I think Americans need to get in the habit of thinking of all of this as much more flexible and much more malleable than it is.

S1: You mentioned that part of what makes these changes with the judiciary and how we approach the democratic systems in this country possible is having a strong president, a president who feels empowered and who has the support of the people. Do you feel confident that. Biden, who is the Democratic nominee, is showing that he is feeling that strength to move forward in a powerful way.

S2: This is a hard thing to say. If you look at Biden’s entire career, he’s been kind of a weathervane Democrat. Too much to say that he’s been a centrist and or rather, I don’t think centrist really gets to it. It’s a weathervane Democrat. He moves where the party moves. The party was pro drug war, pro incarceration, pro-business in the 80s and 90s. That’s where Biden is, right? Right at the forefront. The party becomes more supportive of government intervention in the economy. It becomes a little more dovish. It becomes a little more interested in international cooperation as what’s the Obama Biden there to become more socially liberal. Biden is there, too. He’s not always at the forefront, but he moves in that direction. And I think you can see Biden, the party has moved to the left across a number of dimensions and Biden has followed that. That doesn’t suggest someone who has sort of like strong and forthright views about what the what the federal government should deal with the party should do. On the same token. People win power and they put their character is amplified and to some extent revealed. And they may act in ways that you wouldn’t have expected. The myth of FDR is that he was destined to be the president and he was. But when he was nominated, he was nominated not, as I wouldn’t say, a moderate, but he was nominated as someone who was pretty conventional and establishment. I mean, he was the patrician governor of New York City area of New York State, rather. And there is there are some reason to expect it to be, you know, reasonably bold, but there’s no reason to expect you’d he’d be as bold as he was. But he was reacting to the president before him. He directly the president before him, but he kind of rose to the circumstances. And so I think that’s the question of Biden, not whether he has some intrinsic ability, but whether he is able to rise to the circumstances that that are presented to him. And that I don’t know. I can’t answer. Right. I don’t I don’t know. I don’t know, and that’s kind of the big gamble for everyone who is riding on Biden’s election to hope that at his at his age, this is the last act not of his political career, but of his life, that he sees what the stakes are and acts accordingly.

S3: Jamelle Bouie, thank you for letting me pick your brain, not a problem. Jamelle Bouie writes for the op ed section of The New York Times, and that’s the show. But before we go, I’ve got a request for you as we all stare down this November election. I want to know how you’re preparing. Do you have a plan to make your vote or your neighbors vote count? Are you working at a poll site talking to your friends and relatives to make sure they’re all registered? Let us know. Hearing what you’re up to, it could really help someone else out. And if this is your first big election, let us know that to the way to do it is to give us a call to zero two eight eight eight to five eight eight. We may play your voicemail on the show. What Next is produced by Mary Wilson, Jason de Leon, Daniel Hewitt and Ilana Schwartz, Alison Benedict and Alicia Montgomery. Make sure we are on point every day. And I’m Mary Harris. I’ll catch you back here tomorrow.