The Democrats' limp messaging in the battle to fill retiring Supreme Court Justice Anthony Kennedy's seat is yet another example of how the party is mentally stuck in a bygone era.
After some initial concerning statements from stray Democratic senators suggesting they might be cooperative with the president, the party's strategy came into focus over the past day or so: They will argue that Republicans invented a new "no SCOTUS picks in an election year" rule by refusing to hold hearings for Merrick Garland in 2016, and that Kennedy's seat should be held open until after the midterm elections. Democrats are out there in force right now making this very case.
While the speed with which the party coalesced around total obstruction is heartening, the rhetoric is a huge mistake and a lost opportunity. As always, the Democrats are pursuing a logic of reaction, seeking to apply this new "McConnell rule" to a situation produced by Republican procedural escalation. It's transparently disingenuous and procedurally absurd. There is a federal election in this country every other year, and closing them down to SCOTUS picks is not a workable norm in the long run.
More importantly, this gambit is not going to work — and everyone knows it. While Democrats should hang together and make every vain effort to pressure the remaining Senate moderates, let's be real: Republicans are going to confirm whoever is put in front them by President Trump. Jeff Flake and John McCain might tweet the occasional somber criticism of the president, but when given the opportunity to appoint hard-right originalists to lifetime positions on the Supreme Court, they will go merrily along. It is their life's dream to finally vanquish the New Deal, overturn Roe v. Wade, and usher in a new Gilded Age. If that means voting for the SCOTUS pick of a sub-literate, corrupt, divisive Russian stooge, they are all too happy to do it.
The Democrats' "McConnell rule" rhetoric also expresses a sad and desperate yearning for a comity-based political order that is not coming back. The new rules are this: There will be no SCOTUS picks if the president's party doesn't hold the Senate. Period.
That's the logic that Republican Sens. Ted Cruz (Texas), Richard Burr (North Carolina), and John McCain (Arizona) endorsed when it looked like Hillary Clinton would win the presidential election in 2016 while Republicans held the Senate. Dems should embrace this absurd order and just be honest: The GOP's shameless, norm-incinerating heist of Merrick Garland's seat should equal the permanent withholding of Democratic cooperation from President Trump on court picks of all kinds.
His district court picks should get zero Democratic votes. His appellate court picks should get zero Democratic votes. And he should never, under any circumstances, see a single Democrat vote for his Supreme Court nominations. Democrats should not apologize for this or try to stuff their obstruction into the logic of some kind of workable new norm that might carry over into the next Congress. It won't.
But the decision to frame their opposition to a new justice as part of the McConnell rule is even dumber than that. Let's say that Republicans call the bluff and agree not to fill Kennedy's seat until early next year. What's the message from headquarters going to be if Democrats don't runner-runner the Senate this fall? The party is a long-shot at best to take back the chamber. Even if Democrats take the two or more Republican-held seats they need, they must then successfully defend all 10 of the seats they are clinging to in states won by Donald Trump. If they, as seems likely at this moment, fail to win the Senate, is Trump's pick going to get 30-something Democratic votes from this caucus?
Instead of invoking a mythical McConnell rule that no one in either party is going to adhere to when the situation is reversed, Democrats should be doing two things: (1) Make the case for wholesale reform of the way Supreme Court openings happen and (2) Make threats about what exact form of vengeance will be meted out the next time they are in power.
Democrats should, first, remind the American people that the way we staff the Supreme Court has always been broken and insane, long before Merrick Garland was stonewalled. The best way to think about the complete nonsense lottery leading to lifetime tenure on SCOTUS is this: If Clarence Thomas retires and something happens to Democratic appointees Ruth Bader Ginsburg (who is 85) and Stephen Breyer (who is 79), Trump could appoint the entire majority on the Supreme Court in his first term alone.
This is dreadfully unfair, imposing long-term consequences on the American people for what is essentially a random process. Supreme Court openings must be routinized with agreed-upon, constitutional rules if we are ever to end the court wars. Democratic President Jimmy Carter lucked into precisely zero openings in four years between 1977 and 1981. Trump now has the opportunity to fill two seats in his first two years in office with the possibility of more to come.
Democrats must get behind a radical reimagining of how Supreme Court openings are created and filled. Why not cap service on SCOTUS at 18 years and give every president the right to two picks per four-year term? If that law is deemed unconstitutional, as it may very well be, Democrats could introduce a constitutional amendment to eliminate lifetime tenure and dare Republicans to oppose a genuinely bipartisan, far-reaching resolution to this problem.
In all likelihood, though, the olive branch of compromise will be swatted away by a Republican Party that will be in no mood for deal-making. After all, if Democrats sweep back into power in 2020, the Supreme Court will be the only thing standing between America and functional modernity of the sort by which originalists and Randian fanatics can't abide. Once it becomes clear that Republicans have no intention of cooperating to amend the Constitution, the next Democratic president should go on national television shortly thereafter and give Neil Gorsuch seven days to resign, or else SCOTUS will be packed with the number of justices required to produce the liberal majority that was stolen from Democrats in 2016. Remember: The number nine is not in the Constitution at all, and there is no functional difference between manipulating advice-and-consent procedures to steal the Court's swing seat and simply adding justices.
That's the future. For now, Democrats must move away from this McConnell rule talk, and fast. Democratic and progressive partisans and activists don't want to hear about norms and informal rules. The norms are dead. Instead, they want to hear what party leaders are going to do about it if and when they ever get back into power. Do party leaders want their GOTV volunteers running around talking about something called the McConnell rule? How's that conversation going to go? Wouldn't it be better to put a message about real fairness and real reform out there, to convince Democratic voters that the Supreme Court is not some neutral, umpire-like entity but rather a nakedly political institution that must be treated as such? The base is desperate for hardball.
Give it to them.