The Washington PostDemocracy Dies in Darkness

Opinion Capitulating to the right won’t end the judicial wars

The casket of the late Justice Ruth Bader Ginsburg arrived in the Great Hall of the Supreme Court for a brief ceremony on Sept. 23. (Video: The Washington Post)

Why do President Trump and the Republican majority in the Senate feel empowered to launch a right-wing judicial coup? They can do so because the mainstream media have largely accepted the false terms of the Supreme Court debate set by conservatives — and because progressives and moderates have utterly failed to overturn them.

As a result, we face a crisis moment. The Supreme Court could fall into the hands of activist reactionaries for a generation or more. Preventing a political minority from enjoying indefinite veto power over our democratically elected branches of government requires getting the facts and the history right. Let’s start.

This polarization is the conservatives’ doing. And it did not start with Robert Bork. The current incarnation of Supreme Court warfare began in the early 1960s when the far right launched its “Impeach Earl Warren” campaign against the chief justice who presided over the Brown v. Board of Education desegregation decision and other liberal victories.

It continued with Richard M. Nixon’s attack on liberal judges during his 1968 presidential campaign and the successful battle that year to block President Lyndon B. Johnson’s effort to elevate Justice Abe Fortas, his close friend, to chief justice.

Unfortunately for liberals, some of Fortas’s conduct gave a coalition of Republicans and conservative Southern Democrats real ammunition to use against him. But the point, as Michael Bobelian, the author of a book on the episode, noted, is that it was the Fortas “imbroglio — and not Robert Bork’s nomination in 1987 — that triggered the modern confirmation wars.”

Yes, liberals were very tough on Bork when President Ronald Reagan nominated him. But any time you hear conservatives talk about “Borking,” remind them that Bork got a hearing and a floor vote. In the end, 58 senators, including six Republicans, voted against him.

Which is why getting Merricked is worse than getting Borked. The contrast between the straight-up defeat of Bork and the Merrick Garland blockade could not be more stark. Republicans lacked the guts to give Garland a hearing or a floor vote in 2016 because a great many in the GOP had praised Garland, a moderate liberal, as an ideal pick for President Barack Obama to make. The perfect way for cowards to avoid a vote on a jurist they admitted had sterling qualifications was — well, not to vote at all.

There is no getting around the truth: A Democratic president couldn’t even get a hearing on someone named to the court eight months before a presidential election. A Republican president is entitled to a vote on someone who will be named less than seven weeks before the election. The partisanship is naked, and it’s on one side.

This makes Republicans the real “court packers.” Memo to liberals: The GOP’s abuses make expanding the court morally necessary, but stop calling it “court-packing.”

If Republicans force through Trump’s nominee, they will have abused their power twice to create an illegitimate, long-term 6-to-3 conservative majority. Adding additional justices is thus an effort to make the court less partisan, less ideological and more balanced. It is a moderate aspiration, not a “left-wing” demand. It is a response to the other side’s court-packing.

Trump, Senate Majority Leader Mitch McConnell (R-Ky.) and all of the senators who vote with them are the radicals and the aggressors. The language of the fight going forward must make this clear.

Conservatives use Roe v. Wade as a decoy. Of course Roe will continue to matter. But conservatives have brilliantly used the abortion question to distract attention from the core of their activist agenda. It involves dismantling regulation, gutting civil rights laws, narrowing voting rights enforcement giving moneyed interests free rein in our politics, strengthening corporate power, weakening unions, undercutting antitrust laws — and, now, tearing apart the Affordable Care Act.

Conservatives would much rather talk about abortion than any of these other questions. Why? Because they don’t want the public to hear about issues related to democracy and economic justice on which the right takes the unpopular side. What they can’t win in Congress, they want to win through the courts. That is the dirty secret of conservative judicial activism that McConnell and his friends would love to keep under wraps.

These battles are not about “qualifications.” If they were, Garland would be on the court. If they were, Republicans would not have announced they will vote for Trump’s nominee before even knowing who she is. The GOP simply wants another right-wing vote, and they will get it by any means necessary.

Don’t give in to bullies. Capitulating to conservative manipulation of the confirmation process will only discredit the courts themselves and endanger the rule of law. Fighting judicial partisanship begins with seeing this effort for what it is, and defeating it.

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Read more:

Read a letter in response to this column: We’ve seen the effects of ‘court-packing’ before

Paul Waldman: Trump is counting on the Supreme Court to help him steal the election

Jennifer Rubin: The unmaking of the Supreme Court

David Byler: Trump’s Supreme Court pick would be a risk — for himself and the country

Henry Olsen: Packing the Supreme Court is a horrible idea. Democrats must reject it.

The Post’s View: Judicial term limits are the best way to avoid all-out war over the Supreme Court