The tears didn’t start right away. Not until a bit of my initial shock had worn off. I’d say it took about 10 minutes. Then it felt like a flash flood.
The tragic news of Ruth Bader Ginsburg’s passing rocked millions of us. After an epic 21-year battle with multiple cancers, the death of the iconic 87-year-old Supreme Court Justice should not have come as a surprise. But when it comes to losing our genuine heroes, that’s just not how it works.
No matter where one sits on the ideological spectrum, it is incontrovertible that RBG’s 60-year legal career advanced us toward a more equal society. Her legacy in American history is secure.
But for progressives, mourning the loss of Ginsburg also means panicking about who will replace her on the high court. Within hours of the announcement or her passing, President Trump and Senate Majority Leader Mitch McConnell announced their intent to confirm a new justice before Election Day.
Democrats are terrified. And after getting rolled on judicial appointments over the last four years, they should be. But the real question is: Have they learned anything? And I’m not talking about Democratic voters. I’m talking about their Senators.
It is often said that Democrats will bring a knife to a gunfight. And while that’s not always true when it comes to presidential politics, it certainly applies to the modern history of Congress.
When I wrote Unlock Congress in 2015, I made every effort to publish a book that was nonpartisan in tone and substance. It was about reforming a set of wrongheaded rules in our system that consistently generate a defective congressional product.
But it’s also a fact that Republicans have harnessed these weaknesses in the system — or encouraged their survival — far more adroitly than have Democrats.
When it comes to the legal rigging of congressional districts, the GOP has executed this strategy to near perfection.
As well, overwhelmingly Democratic efforts in Congress to turn the tide on the massive flood of money that controls decision-making has been stymied at every turn by Republicans.
Those fixes don’t get showcased in political news as much as a third major reform I suggested: Eliminating the blocking rule in the Senate known as the “filibuster.” If that word sounds familiar to you, it may be because Senate Majority Leader Mitch McConnell (R-KY) did eliminate it in 2017 to confirm Justice Neil Gorsuch. This meant that instead of needing 60 votes for advice and consent, the Republicans only needed 51.
The same rule applied when the GOP confirmed Brett Kavanaugh — and it may apply once more in the case of replacing Ginsburg.
The irony of this is that Democrats started rolling this ball back in 2013. That’s when Democratic Senate Majority Leader Harry Reid eliminated the fililbuster on confirmations for all judicial and cabinet-level appointments — outside of the Supreme Court. Reid did this because with a Democratic Senate and White House, he and Obama got fed up with McConnell’s use of the filibuster to consistently block the president’s nominations.
Ironically, when Reid blew up the filibuster, Mitch McConnell warned:
“You’ll regret this, and you may regret it a lot sooner than you think.”
Flash forward to 2016, when McConnell had acceded to Senate Majority Leader. In April of that year, McConnell broke with the Senate’s norms by not even holding confirmation hearings for President Obama’s Supreme Court nominee, Judge Merrick Garland. Some called it cheating. Others called it illegal. But there was no question it was hardball.
Then McConnell waited, and as soon as Trump got elected and started selecting justices to the high court, McConnell pulled the trigger and dropped the filibuster in the confirmation process. Since 2017, the Kentucky Senator has shepherded two new conservative judges onto the Supreme Court. And now he’s announced he will break another norm by going after a third less than 50 days from a presidential election.
The Republicans know that this is wrong. And we know this because they have said it. Repeatedly. But that won’t stop them. Again, if you view it as a gunfight, there’s only one way to approach it.
If the GOP does fill this open seat, the only option left for Democrats is to drop the filibuster on legislation — the only place it still exists. Not only is this long overdue, but it may be even more necessary for the Democrats when it comes to the Supreme Court. There’s talk among party leaders that they should pass legislation that would expand the Court — in order to pack it and restore balance to it. The only way they’ll be able to do this is to kill the filibuster once and for all.
Some would argue that Senator Reid’s first move was breaking Senate norms. I have argued for years that eliminating the filibuster actually restores the concept of majority rule — outlined in our Constitution. But regardless of the label, the point is that if you’re going to “go nuclear” — you’d better go all the way. If you think your policy ideas are better and that the results you’d create would win out in the long run, then harness the rules to maximize your political power and get your big bills passed.
Over the summer, President Obama finally endorsed this course of action. As he eulogized his hero, the Honorable John R. Lewis, Obama talked about the importance of unrigging congressional districts and restoring voting rights. Then he announced:
“If all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American, then that’s what we should do.”
If Democrats had done that long ago, by now they might have achieved single-payer universal healthcare, massive improvements to our federal infrastructure, common-sense gun safety laws, climate change legislation, and tax policy that they’ve been talking up for decades. You simply can’t achieve these things in America’s 2020 political climate when you’re forced to secure 60 votes on the floor of the US Senate.
But all of this can be changed. Achieving those legislative victories can happen. It starts with Democrats winning the White House and the Senate. But that’s only a start.
When I began writing this article, through blurry eyes, I had the idea of simply titling it: “Ruth-less.” But then it sounded tacky to my ear. Too soon.
Yet that’s what Democrats must do. They have lost a judicial hero. They have lost Ruth. If they want to start winning as legislators and as leaders, they’ll need to start channeling RBG’s spirit — take some of that steely spine — and then start taking no prisoners.