Call Their Bluff

By Noah Rothman

Tuesday, September 22, 2020

 

It has become fashionable in recent years to be fatalistic. For the sophisticated fatalist, the nation is forever teetering on the brink of epochal disaster. It is no coincidence that decline and even dissolution are, for this sort, always a product of our politics, and our politics are always the remedy.

 

So we’ve heard: The very character of the nation will be forever changed for the worse if Barack Obama implements his version of health-care reform. And: If elected, Hillary Clinton will criminalize gun ownership and dramatically curtail religious liberties. And: Unless Republicans suffer for rallying around Donald Trump, the GOP and the levers of power they control will be delivered irretrievably into the hands of an authoritarian menace. And so on.

 

Zoom out from the political battles of the day, and you see something much less apocalyptic: Americans responding to political incentives and punishing those actions they see as radical revisions to the status quo. Democrats overreach, and they’re forced out of power. Republicans govern with contempt for consensus and civility, and they, too, are rebuked. Yes, partisans are becoming more partisan. Yes, Americans are self-sorting into politically homogenous camps. The two parties are less constrained by the institutions they control, and they are increasingly beholden to their respective fringes. But voters tell a consistent story about the United States: We do incrementalism here, not radicalism.

 

And now we are thrust into another existential debate, this time over whether the president can appoint and the Senate can confirm a new justice to the United States Supreme Court just weeks before an election—an election in which the incumbent is the underdog. Once again, the end times are upon us. Egged on by irresponsible pundits, our perpetually exercised, excessively online partisans are promising street action if they don’t get what they want. Democrats are pledging to shatter the political system, and media outlets are exploring their options. Everything is on the table, from eliminating minority privileges in the Senate to adding two new, presumably dark blue states to the Union. The most tempting of the extraordinary measures on the menu seems to be “packing” the Supreme Court with new, hand-picked liberal justices so that it becomes an instrument of Democratic political utility.

 

To forestall this outcome, some have advocated a compromise. The Dispatch’s Jonah Goldberg and David French envision a grand bargain in which Republicans postpone the nomination process in exchange for guarantees from Democrats that they won’t “vote for a court-packing scheme.” Writing in the Washington Post, George Will agrees. The idea is that a Republican push to install a new justice on the Court now would sap the institution of legitimacy and pave the way for the purely punitive expansion of the bench.

 

The threats Democrats have issued are, indeed, intimidating. At least in theory. But those advocating these compromises are failing to take into account the equilibrium enforced by the electorate. What Republicans appear primed to do here is, by and large, normal. The response Democrats are promising is most certainly not.

 

Would it be a display of hard elbows to confirm a new justice this late into a presidential election year? It would. Is it a reckless abuse of power? In no conceivable way. The nation’s founding charter describes the procedural approach to a vacancy on the high court. And for the third time in four years, that process, which is controlled by Republicans, is being adhered to.

 

Democrats have responded to these relatively conventional circumstances by taking themselves hostage.

 

They swear that once they are in power they will execute a radical revision of the civic covenant. For explicitly utilitarian purposes, they would neutralize the Republican advantage on the Court by expending hard-won political capital in pursuit of an epoch-altering outcome—court-packing—on which no Democratic office-seeker is currently campaigning. Such a course of action, which is only possible if Democrats secure every lever of power in Washington, would derail a Biden presidency, deprioritize more consequential legislative reforms, invite a backlash from voters who detest naked power grabs, and sacrifice the swing-state Democrats who delivered their party into a new period of ascendancy.

 

The course of action on which Republicans seem set relating to the vacancy is only likely to exacerbate the conditions that have led voters (if polls are to be believed) to conclude that the GOP is deserving of censure. But that is a cumulative result. It took several years of effort for the Republican Party to turn off as many voters as it has. By contrast, what Democrats are talking themselves into would accomplish something similar in a single bound. What’s more, Democrats have been talking themselves into it for several years, and they would still be doing so even if Justice Ruth Bader Ginsburg were alive today.

 

There is no justification, ethical or political, for Republicans to legitimize these tactics by treating them as though they were an appropriate response to the exercise of enumerated constitutional prerogatives. Republicans did not antagonize Democrats into this position, and Republicans cannot appease Democrats out of it. And if they were to act on these threats, it would be Democrats who would have radically altered the terms of political engagement and to their own detriment.

 

Republicans should call their bluff.