If 2020 wasn’t apocalyptic enough for you, now comes the death of Justice Ruth Bader Ginsburg, and the prospect of a Supreme Court battle in the final weeks of the most critical election in the nation’s modern history. As Republicans are already promising a vote on a nominee from Donald Trump, the obvious question is: What can be done to stop conservatives’ full takeover of the nation’s high court for the rest of our lives?
We don’t have all the answers, but we have one answer among many: a serious New York Democratic candidate needs to step up and announce a 2022 primary challenge to Sen. Chuck Schumer — who already has a record of helping fast-track Donald Trump’s judicial appointments.
That primary challenge needs to be announced right now — and it needs to be clear that the primary challenge will be a referendum on Schumer’s record on Trump judges.
As minority leader, Schumer will lead Senate Democrats as President Donald Trump and Senate majority leader Mitch McConnell inevitably try to install a justice onto the court sometime before Trump has to leave office, should he lose the 2020 election. That means Schumer needs to face maximum pressure every single day to use all possible power that his caucus has — and it has power — to stop a Trump appointment.
Not just pressure as in phone calls and protests — pressure as in you-will-be-voted-out-of-office pressure.
Schumer Has Previously Agreed to Advance Trump Judges
We know Schumer needs that kind of pressure because as Vox reported, in 2018 he agreed to a deal “to fast-track the confirmations of fifteen Trump-nominated judicial picks.” Additionally, under Schumer’s leadership, members of the Democratic caucus provided votes to confirm Trump’s two previous judges, Neil Gorsuch and Brett Kavanaugh. We also know that Democrats have periodically voted to install Trump judges on lower courts.
You could argue that there was nothing Schumer could do to prevent conservative Democrats from voting the way they did, but that’s bullshit. Schumer controls the party apparatus and its fundraising machine — if his excuse is he can’t do anything, then he shouldn’t be the leader.
Schumer and Democrats have chronically mismanaged judicial appointments. Obama left office with a Supreme Court seat open and far too many district and court of appeals vacancies. Republicans have rushed to fill those seats, and Democrats have rubber-stamped most of their nominees with little fight. While House Democrats and Senate Republicans haven’t managed to agree on a new COVID-19 relief bill since March, Democrats this week helped confirm eight new district court judges this week.
It’s true that if Republicans hold together, then they can vote a Supreme Court nominee through with a simple majority — that is, if they are able to force a vote, and it’s not a given they will be able to if Democrats use all of their power.
Grinding the Senate To a Halt
The Senate runs on the unanimous consent system — which basically means that to do its most basic business, all senators must consent. In this situation, Senate Democrats have the power to use that system to grind everything to a halt.
They can refuse to grant unanimous consent for the smallest things.
They can force the reading of entire bills aloud.
They can hold up the federal budget that the government needs to run.
They can use these tactics to try to push back any confirmation hearings on a potential nominee.
And they can try to do these things at least until after the next president is installed — all while they remind the public of the hypocrisy of GOP senators who said they would not try to install a judge during an election year.
If Trump loses or if Republicans lose the Senate, then any semblance of moral authority to move the nomination forward will have completely collapsed: the electorate will have explicitly rejected the people responsible for it.
While it would be naive to think that quaint concerns about the consent of the governed will rule the day with most Senate Republicans, if this shifts even a few into the “no” camp then we will have won. Moreover, if Arizona Democrat Mark Kelly wins his race against GOP incumbent Martha McSally (to fill the remainder of John McCain’s term), he would be seated at the end of November, rather than in January. But continued obstructionist tactics might yet be needed to prevent them from using the lame-duck session to ram a nominee through.
If Republicans still go forward with an appointment, then all of this becomes the justification for Democrats to immediately pass legislation in the new Congress to expand the court.
It would certainly be unprecedented, but we are living in unprecedented times — and this is what a Democratic leader must be forced to try to do, and the best way to force a senator to do something is to make clear they are risking their job if they don’t do that thing.
New York Has Plenty of Dems Who Could Primary Schumer
Schumer has been in the Senate long enough to know exactly how to make life impossible for Trump and Republicans. Up until now, he has chosen not to do that. He cannot make that choice now — and the only way to best guarantee that he won’t is for a major Democrat in New York to step up right now and make clear they are running against him in the 2022 primary, and they will make his behavior in this Supreme Court fight the central issue of their campaign.
New York is a blue state. It has plenty of potentially powerful contenders — it has Democratic state lawmakers. It has Democratic congresspeople (including a very well-known one from the Bronx). It has statewide elected officials. It has New York City officials. There is no shortage of progressive Democrats in that state who could run credible, well-financed campaigns.
We know from past experience that Democratic primaries can quickly force establishment Democrats to suddenly step up their game. One example of many: when conservative Arkansas Democrat Blanche Lincoln in 2010 faced a progressive primary challenge, she suddenly shifted from a reliable Wall Street ally into a populist who championed a crackdown on the derivatives that blew up the global economy in the financial crisis. As the Wall Street Journal noted at the time, she shifted because she knew she could pay an electoral price at home if she didn’t.
There’s even more potential of such a dynamic when it comes to Schumer, because New York is a reliable Democratic state. There is literally no rationale for him to wuss out on this.
Sure, maybe on his own Schumer wouldn’t end up going soft and letting Trump and McConnell steamroll their way through the Senate. But he might — which is exactly why someone needs to step up.