By Rich Lowry
Tuesday, September 22, 2020
Constitutional revolution is going mainstream.
After delivering lectures about political norms for the
entirety of the Trump era — often with good cause — much of the Left is now
threatening to kneecap an important institution of American government on a
partisan vote in an act of ideological vengeance.
If the Republican Senate confirms a Trump appointee to
fill Ruth Bader Ginsburg’s Supreme Court seat right before or after the
election, progressives say Democrats, if they sweep in November, should
retaliate by packing the Supreme Court.
This would do vastly more damage to the governing
structure of the country than anything Donald Trump has said or done, but
respectable center-left outlets like The New Yorker and Vox have
run pieces advocating it and Democratic leaders are making fraught “all options
on the table” statements.
None of this comes out of the blue. The Left is
disenchanted with our country, and especially its governing institutions, which
it believes are shot through with racism and deeply undemocratic. Democrats
have gone from assuming a few years ago that they have a permanent majority to
assuming that they can’t possibly win under such a rigged system.
They no longer want to live under a government that
checks majoritarian passions, recognizes the importance of states in our
federal system, and features a Supreme Court that is supposed to render
independent judgments based on the law and the Constitution. All of this, once
a matter of basic civics, is now for suckers.
Before its new fashion, court-packing used to be
notorious, the ill-considered move that FDR couldn’t see through even at the
height of his power.
For good reason. To add a bunch of new seats to the Supreme
Court explicitly so a Democratic president could fill them would radically
diminish the Court’s standing. It would invite Republicans to counter with
their own bout of court-packing when they again returned to power. The Court
would become merely a partisan play-thing and essentially an adjunct to the
legislative branch — all that would stay the same about institution would be
the black robes.
And for what? To compensate for a duly elected Republican
Senate acting on its prerogatives to block one Supreme Court nominee (Obama
nominee Merrick Garland) and potentially confirm another (Trump’s nominee to
fill the RBG seat).
The Senate itself is now an affront because small states
get equal representation with large states. Never mind that this arrangement
was at the center of the deal that gave us the Constitution. Never mind that
the Constitution stipulates that this provision is unamendable. Never mind that
prior to 2014 the Democrats controlled the Senate and didn’t seem overly
concerned about the body’s alleged lack of legitimacy.
The fact is that senators are chosen in democratic
elections in their respective states, and it’s not a failing of our
constitutional design that Democrats have made themselves so hateful to rural
voters that they despair of reliably holding the Senate going forward. As a
corrective, they are threatening to eliminate the filibuster to allow them to
add Washington, D.C., and Puerto Rico as states to boost their number of
senators, a maneuver that smacks of pre-Civil War–era power politics.
All of this talk is an awkward fit for Joe Biden’s candidacy.
We are told that Biden is an inoffensive institutionalist and committed
moderate, but if Republicans defy his wishes on the RGB seat, he will respond
by blessing outlandish changes to our system passed by narrow majorities.
And, by the way, Biden better win. Shadi Hamid of The
Atlantic wrote a piece expressing his worry “that Trump will win reelection
and Democrats and others on the left will be unwilling, even unable, to accept
the result.” He raises the possibility of “mass unrest and political violence
across American cities.”
Accepting the result of an election is a pretty important
norm — unless you’ve convinced yourself you live under a hideously undemocratic
regime with no legitimacy.
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