The political and cultural divisions that have riven this country for decades are about to hit a fever pitch. Supreme Court Justice Anthony Kennedy’s replacement will be chosen without input from Democrats. Policy changes and recent elections have aroused plenty of partisan fury, but those can all be undone in less than a decade if the electorate changes its mind. Federal judges, however, receive lifetime appointments. Kennedy served 42 years as a federal judge — the last 30 on the Supreme Court.
Much has been written about how Sen. Mitch McConnell denied Obama a Supreme Court pick after Justice Scalia died in early 2016, but that’s not quite true. Merrick Garland probably would have failed to win over enough Republicans to receive the 60 votes his confirmation would have required. What McConnell really denied the Democrats was the hearings and the vote. He denied them a telegenic campaign issue during a presidential election year.
If there’s a villain in the current SCOTUS saga, it has to be McConnell’s predecessor, Sen. Harry Reid. Reid’s bare-knuckled tactics against the Republicans spared President Obama the trouble of vetoing legislation he didn’t like. Under Reid’s leadership, Obama vetoed fewer bills than any president in a century.
More importantly. Reid used parliamentary sleight-of-hand to chip away at the filibuster. Senate rules can be changed by a simple majority vote, but only on the first day of each legislative term. Reid did not gavel out each day’s proceedings, allowing him to claim that the Senate remained technically in its first day of legislative business throughout the term. This preserved the majority’s option to change the Senate’s rules.
Without the filibuster, the Senate has become increasingly majoritarian, unfit to cool the tempers that always flame in the House of Representatives.
Reid let the filibuster-breaking genie out of the bottle. McConnell followed suit and ended judicial filibusters completely, as soon as it suited his party’s purposes in early 2017. McConnell also ended another Senate practice that allowed any Senator to submit a “blue slip” of disapproval, blocking any judge nominated to serve in the Senator’s home state.
With minority rights quashed, the United States Senate has been busy stocking the lower federal courts with conservative lifetime appointments at a record pace. Democratic senators are left to sit on their hands and watch this majoritarian march, thanks to Reid’s 2009 strategy.
Reid’s reasoning at the time was that Democrats were in the majority and demographic trends suggested it might stay that way for a very long time. Indeed, the majority of voting Americans have chosen Democrats over Republicans in almost every recent election cycle, including six of the last seven presidential campaigns.
Reid failed to take into account three complicating factors: federalism, gerrymandering, and the Electoral College.
Republicans poured resources into enough local races to control key statehouses in 2010. This allowed them to draw the redistricting maps in their favor for the decade ahead. Republican presidential campaign strategists have learned they don’t need the most votes, so long as they get the right votes. The last Republican to enter the White House with anything resembling a popular mandate was George H.W. Bush in 1988.
This is not an argument that we should now abolish the Electoral College. Quite the opposite! Our republic has endured because of the checks and balances built into it. Protecting minority rights has been our secret sauce — whether that’s a migrant worker in El Paso, Texas or a Senator from Pierre, South Dakota.
We stop protecting the minority at our peril. We’ve built a society that welcomes anyone and has successfully protected their interests. Our economy has thrived on the contributions of outsiders for roughly forever.
Our Founding Fathers did not want to trade one tyranny for another. The tyranny of the majority worried them more than almost anything else. A pure democracy held no interest for them — no majoritarian marches. They were determined to prevent a “mobocracy” — a common term in the 1700s.
We can only hope that federal judges of every political stripe will become acquainted with that term and our historically shared resolve to resist it.
Don Kahle (email@example.com) writes a column each Friday for The Register-Guard and blogs at www.dksez.com.