In February 2016, Senate Majority Leader Mitch McConnell made up a rule that presidents may not install a Supreme Court justice in the last year of their terms. Most Republicans fell in line, endorsing this principle on the grounds that the American people should decide who gets to pick the next justice. Many of these same lawmakers are now backing McConnell’s plan to replace the late Justice Ruth Bader Ginsburg in the midst of a presidential election. They have abandoned any real effort to justify their reversal.
This about-face, while degrading, presents Democrats with an opportunity. After more than four years of gaslighting, Republicans have stopped pretending that their blockade of Barack Obama’s nominee, Merrick Garland, was rooted in anything other than sheer partisanship. In the past, the Senate considered a president’s nominee then provided its advice and consent by taking a vote. But Republicans killed that process in 2016 and are now stamping on its remains. They have now established a new rule: The party in power can use every tool at its disposal to seize the Supreme Court, within constitutional limits. If Democrats win unified control of the federal government in November, they must draw from the Republicans’ new rule to expand the court.
Every justification for McConnell’s Supreme Court brinkmanship, in fact, doubles as a justification for court expansion. Republicans’ rationalizations now hinge on the claim that because Republicans can replace Ginsburg, they must do it. “The Constitution gives senators the power to do it,” explained Tennessee Sen. Lamar Alexander, and “no one should be surprised” when they do. “The Constitution gives the President the power to nominate and the Senate the authority to provide advice and consent on Supreme Court nominees,” Utah Sen. Mitt Romney agreed. Republicans have a responsibility “to ensure we have an impartial judiciary that upholds the Constitution and the rule of law,” said Sen. John Thune of South Dakota. “Both the White House and the Senate have some obligation to do what they think in the majority in the Senate is the right thing to do,” Sen. Roy Blunt of Missouri announced on Meet the Press. …
Faced with this onslaught of disingenuity, Democrats have two options. They can accept a half-century of far-right, partisan jurisprudence while protesting that Republicans are hypocrites. Or Democrats can stop complaining about the new rules and start playing by them. The first choice rests upon the theory that it is possible to shame politicians who’ve demonstrated, over and over again, that they have no capacity for shame. The second rests upon the theory that Democrats have an obligation to play constitutional hardball—not just to protect their agenda, but to save the court’s legitimacy and preserve democracy itself. And if that obligation does exist, the proportional response is immediate and unapologetic expansion of the Supreme Court.