That picture of Barrett and Trump reveling in their mutual triumph was so vivid that the Trump campaign literally turned it into an ad for the president’s reelection. A different person might have said, “Mr. President, it wouldn’t be appropriate for me to participate in such a nakedly political event.” But Barrett wasn’t concerned. She didn’t shout “MAGA 2020!” but she might as well have.
So now it is up to Democrats to recalibrate their understanding of just what is and isn’t appropriate — starting with expanding the Supreme Court as soon as they have the opportunity, which could come in January 2021.
This may be the single most important thing they have to remember: Their actions must not be determined by whether Republicans will complain.
Unfortunately, that’s how Democrats usually see things. If Republicans raise a stink — or even if they just assume Republicans might raise a stink — then Democrats shrink back in fear, lest the action they’re contemplating be considered inappropriate.
But by now they should understand that Republicans will say that everything they do, no matter how by-the-book it might be, is an egregious violation of propriety and good conduct. That’s how Republicans operate, precisely because they know Democrats are deeply concerned with whether processes are conducted in fair and reasonable ways.
But Democrats should listen to Sen. Mitch McConnell (R-Ky.). Here’s part of what the Senate Majority Leader said Monday during the floor debate on Barrett’s nomination:
Our colleagues cannot point to a single Senate rule that’s been broken. They made one false claim about committee procedure which the parliamentarian dismissed.The process comports entirely with the Constitution.We don't have any doubt, do we, that if the shoe was on the other foot, they would be confirming this nominee. And have no doubt if the shoe was on the other foot in 2016, they would have done the same thing. Why? Because they had the elections that made those decisions possible. The reason we were able to make the decision we did in 2016 is because we had become the majority in 2014.The reason we were able to do what we did in 2016, 2018, and 2020 is because we had the majority. No rules were broken whatsoever.
To clarify, the dates McConnell refers to are when he and Republicans refused to hear President Barack Obama’s nomination of Merrick Garland (2016), changing the size of the court from nine to eight justices and then back again; the nomination of Brett M. Kavanaugh (2018); and Barrett’s nomination (2020).
“The reason we were able to do what we did … is because we had the majority.” It’s the rule McConnell has lived by: Whatever Republicans can do, they will do, if it gives them an advantage.
And he’s right that neither the Constitution nor the rules of the Senate were violated in any of those cases. Nor would it violate the Constitution for Democrats to say that just as Republicans changed the size of the court in 2016 (and as happened many times in the country’s early years), Democrats will now change the size of the court again.
They should do this not only to restore balance after the extraordinary actions McConnell and Republicans undertook, but also as part of a desperately needed effort to stop America’s slide into minority rule and restore something resembling democratic responsiveness to the entire system.
That goes along with eliminating the filibuster so the majority of senators can pass the agenda voters elected them to enact; granting statehood to the District of Columbia and Puerto Rico so the millions of Americans who live in those places can have representation in Congress; and passing a new Voting Rights Act that prevents GOP efforts to disenfranchise voters.
Whenever Democrats waver in their willingness to do what needs to be done to safeguard democracy, they should remember that McConnell is almost daring them to do it, precisely because he thinks they don’t have the guts.
“A lot of what we’ve done over the last four years will be undone, sooner or later, by the next election,” he said Sunday about Barrett’s nomination. “But they won’t be able to do much about this for a long time to come.”
But they can, and they should, no matter how much Republicans whine about it. If voters give them the White House and the Senate, they’ll have the legal right and the moral obligation to do so. Without it we won’t have a real democracy.