“When you have the Senate, when you have the votes, you can kind of do whatever you want,” he told Fox & Friends.
It’s what political scientists call “constitutional hardball” and what we call “do whatever you can do”. It’s not a Trump philosophy. In fact, it’s one of the reasons he and Kentucky Senator Mitch McConnell, a man as clumsily calculating as Trump is blatantly impulsive, have become inseparable end-of-life partners. The Majority Leader has spent decades in Washington treating public service like a sport, going so far as to headline his memoir The Long Game.. In McConnell’s view, the goal of politics is to accumulate as much power as possible by whatever means available. In Trump, he found a soul mate.
Now, the two men have the chance of their lives: the opportunity to confirm an extreme right-wing justice to replace a liberal icon a few weeks before election day. It is hardly surprising that even superficial discussions of principle or restraint have gone out the window. Politically speaking, Trump and McConnell are stars. We will, they suppose, let them do it.
In the short term, they may be right. Unless four Republicans defect, they can install deeply conservative justice in the dying days of the president’s first term. But in the long run, the big loser in McConnellism could turn out to be McConnell himself. No one should be in favor of constitutional hardball. But if the hard ball is to be played, there is plenty of reason to believe the Democrats will win in the end. In fact, rabid Democrats don’t even have to embrace all you can do of Donald Trump with the life-undoing mentality of Mitch McConnell. All they have to do is exercise a little less restraint.
On the one hand, American political institutions are currently biased – in many cases quite aggressively – in favor of the conservatives. Restrictive election laws make it difficult to disproportionately vote for low-income, non-white, and young Americans. Unprecedented gerrymandering gives Republicans an inherent advantage in the House race, and according to FiveThirtyEight’s Nate Silver, the Senate’s bias towards rural states makes the House about seven points redder than the nation as a whole. Thanks to the Electoral College, two of the last five presidential elections have been won by Republicans who lost the popular vote – a reason why even before Justice Ginsburg’s death, 15 of the last 19 Supreme Court justices were appointed by the GOP presidents.
The conservative movement, in other words, had it enough already. The average American disagrees with Republican orthodoxy on all major issues: health, climate change, gun violence, immigration, taxes, the Covid response. Yet, thanks to the prejudices ingrained in the American political process, the Republicans not only remained viable, but obtained extraordinary amounts of power. We can’t know for sure who would benefit from overturning the status quo that existed when Justice Ginsburg passed away – but we do know which party has the most to lose.
Moreover, the GOP has not only profited from the bias of the American political process – it has profited from the fact that many Americans do not realize that such a bias exists. Despite the growing desire of some politicians to erode our democracy, a large majority of Americans still believe in representative government. Among other things, they want to see a higher rate of participation in elections; they want rich interests to have less influence in our politics; they oppose the electoral college; don’t want President Trump rushing into a legal choice so close to an election; and were horrified when Attorney General William Barr gassed tear gas at peaceful protesters earlier this year.
It is possible that as the struggles around our political process become more prominent and public, Americans will become less pro-democracy. But it seems more likely that they will feel more and more resentment towards the party that sees representative government as a threat.
McConnell and Trump may also not realize how much they have enjoyed a double standard in American politics. For decades, Republicans broke standards every time they thought they would. Democrats have broken the standards whenever they believe they have no choice.
It’s not (or at least not simply) 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 feeling that it had little to lose by overthrowing our system of government. Democrats, on the other hand, have become the party of active government – and understandably wary of the possibility that, in an effort to reform institutions, we might instead erode their legitimacy. More recently, the Senate’s rural bias has meant that moderate Democrats in the Red State have more influence than Republicans in the Blue State. At the same time, the Democratic coalition of young non-white voters was growing, giving them hope that doing nothing would still give them a long-term advantage.
If Trump and McConnell rush to confirm from an extremist, partisan judge, cementing a 6-3 majority, the math for Democrats will change completely. Even moderate party members are likely to conclude that they simply have little to lose by acting more aggressively.
Unless they never win the House, Senate, and White House simultaneously, the constitution gives Democrats many ways to restore our democracy, even without resorting to Macconellism or Trumpism. They can expand the electorate by restoring the right to vote, making voter registration universal, and enacting comprehensive immigration reform. They can blunt (if not completely offset) the Senate advantage of the GOP by granting state status, and two senators each, to Puerto Rico and Washington DC. They can reverse the effects of McConnell’s court case by expanding the bench – not just the Supreme Court, but the lower courts as well.
What is remarkable about all of these positions is that they fall far short of what the Constitution allows. They don’t involve granting the right to vote to recent immigrants, dividing California into seven states, restricting the Supreme Court’s right to review most cases, or any other long-term system. In other words, if Democrats return to power in Washington, they won’t have to choose between ambition and prudence. They can exercise both – and thanks to favorable demographic trends and the overall popularity of much of their political agenda, they can be confident that they can maintain power by reflecting, rather than ignoring, the will of the people.
Ultimately, what’s at stake in the fight for Ruth Bader Ginsburg’s replacement is not simply who will sit on the country’s highest court. Instead, it’s an idea laid out in one of the obvious truths of the Declaration of Independence, right after the part on life, freedom, 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 rule without consent. But the constitution is clear: we don’t have to let it happen.
- David Litt, an American political speechwriter, is the author of the memoir Merci, Obama: My Hopey Changey White House Years and Democracy in One Book or Less: How It Works, Why It Doesn’t Work, and Why Fixing It Is Easier what you think