Progressives should not worry about what will happen if they mimic McConnell’s constitutional hardball. Their representatives need only act with a little less restraint
In 2005, while bragging about his history of sexual assault, a reality TV host laid out a simple theory of power. “When you’re a star,” Donald Trump explained to Access Hollywood host Billy Bush, “they let you do it.”
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Fifteen years later, Trump has gone from The Apprenticeto the Oval Office, from grabbing women without their consent to picking a woman to replace Ruth Bader Ginsburg on the supreme court. Yet his approach to power has remained quite consistent.
“When you have the Senate, when you have the votes, you can sort of do what you want,” he told Fox & Friends.
This is what political scientists call “constitutional hardball” and what the rest of us call “doing whatever you can get away with”. It is not a philosophy unique to Trump. In fact, it’s one reason why he and Kentucky senator Mitch McConnell, a man as dully calculating as Trump is garishly impulsive, have become such inseparable late-in-life partners. The majority leader has spent decades in Washington treating public service as a sport, going so far as to title his memoir The Long Game. In McConnell’s view, the purpose of politics is to accumulate as much power as possible by whatever means available. In Trump, he’s found a kindred spirit.
If hardball must be played, there are plenty of reasons to think that Democrats will ultimately come out on top
Now, both men have the chance of a lifetime: the opportunity to confirm a far-right justice to replace a liberal icon just weeks before election day. It’s hardly surprising that even cursory talk of principle or restraint has gone out the window. Politically speaking, Trump and McConnell are stars. We will, they assume, let them do it.
In the short term, they may be right. Unless four Republicans defect, they can install a deeply conservative justice in the waning days of the president’s first term. But in the long run, the great loser of McConnellism might turn out to be McConnell himself. No one should be rooting for constitutional hardball. But if hardball must be played, there are plenty of reasons to think that Democrats will ultimately come out on top. In fact, enraged Democrats don’t even have to embrace Donald Trump’s whatever-you-can-get-away with mentality to undo Mitch McConnell’s life’s work. All they have to do is exercise slightly less restraint.
For one thing, America’s political institutions are currently biased – in many cases quite aggressively – in favor of conservatives. Restrictive voting laws make casting a ballot disproportionately difficult for lower-income, non-white and young Americans. Unprecedented gerrymandering gives Republicans a built-in advantage in the race for the House, and according to FiveThirtyEight’s Nate Silver, the Senate’s bias toward rural states makes the chamber about seven points redder than the nation as a whole. Thanks to the electoral college, two of the past five presidential elections have been won by Republicans who lost the popular vote – one reason why even before Justice Ginsburg’s death, 15 of the past 19 supreme court justices were appointed by GOP presidents.
The conservative movement, in other words, already had it pretty good. The average American disagrees with Republican orthodoxy on every major issue: healthcare, climate change, gun violence, immigration, taxes, Covid response. Yet thanks to the biases embedded in the American political process, Republicans have not just remained viable, but secured extraordinary amounts of power. We can’t know for certain who would benefit from upending the status quo that existed at the time of Justice Ginsburg’s passing – but we do know which party has the most to lose.
What’s more, the GOP has not just benefited from the bias of the American political process – they’ve benefited from the fact that many Americans don’t realize such a bias exists. Despite some politicians increasing eagerness to erode our democracy, large majorities of Americans still believe in representative government. Among other things, they want to see higher turnout in elections; they want wealthy interests to have less influence in our politics; they oppose the electoral college; don’t want President Trump to rush through a judicial pick so close to an election; and were horrified when attorney general William Barr teargassed peaceful protesters earlier this year.
It’s possible that as fights over our political process become more high-stakes and more public, Americans will become less supportive of democracy. But it seems more likely that they’ll grow increasingly resentful of the party which views representative government as a threat.
McConnell and Trump may also not realize the extent to which they’ve benefited from a double standard in American politics. For decades, Republicans have broken norms whenever they believed they could. Democrats have broken norms whenever they believe they had no choice.
The constitution gives Democrats plenty of ways to restore our democracy without resorting to McConnellism or Trumpism
This is not (or at least, not merely) because Democrats are more noble or virtuous than Republicans. In the 1970s, when the modern conservative movement began, an emerging liberal consensus left the right wing feeling it had little to lose by upending our system of government. Democrats, meanwhile, became the party of active government – and were naturally more wary of the possibility that, in an effort to reform institutions, we might erode their legitimacy instead. More recently, the Senate’s rural skew has meant that red-state, moderate Democrats have more clout than than blue-state Republicans. At the same time the Democratic coalition of young and non-white voters was growing, giving them hope that doing nothing would still give them the advantage over the long term.
If Trump and McConnell rush through the confirmation of an extremist, partisan judge, cementing a 6-3 majority, the calculation for Democrats will change completely. Even moderate members of the party are likely to conclude that they simply don’t have much to lose by acting more aggressively.
Unless they never again win the House, Senate and White House simultaneously, the constitution gives Democrats plenty of ways to restore our democracy even without resorting to McConnellism or Trumpism. They can expand the electorate by restoring the Voting Rights Act, making voter registration universal, and passing comprehensive immigration reform. They can blunt (if not entirely offset) the GOP’s Senate advantage by granting statehood, and two senators apiece, to Puerto Rico and Washington DC. They can undo the effects of McConnell’s court-packing by expanding the bench – not just the supreme court, but lower courts as well.
What’s notable about all of these positions is that they stop far short of what the constitution allows. They don’t involve granting voting rights to recent immigrants, splitting California into seven states, restricting the supreme court’s right to review most cases, or any other long-shot scheme. In other words, should Democrats ever regain power in Washington, they won’t have to choose between ambition and caution. They can exercise both – and thanks to favorable demographic trends and the overall popularity of much of their policy agenda, they can be confident that they can maintain power by reflecting, rather than ignoring, the people’s will.
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Ultimately, what is at stake in the fight over Ruth Bader Ginsburg’s replacement is not merely who will serve on the nation’s highest court. Instead, it’s an idea laid out in one of the self-evident truths of the Declaration of Independence, right after the part about life, liberty and the pursuit of happiness.
“Governments are instituted among Men, deriving their just powers from the consent of the governed.”
It’s no surprise that Donald Trump wants to govern without consent. But the constitution is clear: we don’t have to let him do it.
David Litt, an American political speechwriter, is the author of the memoir Thanks, Obama: My Hopey Changey White House Years and Democracy in One Book or Less: How It Works, Why It Doesn’t, and Why Fixing It Is Easier Than You Think
- US supreme court
- Law (US)
- Ruth Bader Ginsburg
- US voting rights
- US politics
- US elections 2020
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