Opinion: Will the Democrats’ threats to retaliate against a Supreme Court vote backfire?

Senate Majority Leader Mitch McConnell (R-Ky.)
Senate Majority Leader Mitch McConnell (R-Ky.) walks to the Senate floor on Monday.
(Jacquelyn Martin / Associated Press)

What’s a worse look for a politician: hypocrisy or extremism?

For Senate Republicans, the risk is that voting on a Supreme Court nominee now will tag them as ends-justify-the-means hypocrites. That’s because 4½ years ago, they refused even to hold a hearing on President Obama’s final Supreme Court nominee, Merrick Garland, proclaiming that confirmation votes shouldn’t happen in an election year.

As Sen. Cory Gardner (R-Colo.) put it after Obama nominated Garland in March 2016, “Our next election is too soon and the stakes are too high; the American people deserve a role in this process as the next Supreme Court justice will influence the direction of this country for years to come.”


President Trump now says he plans to offer his nominee on Saturday, after nine states have already started in-person voting on his reelection bid. But Gardner, like the vast majority of his colleagues, believe it’s OK to proceed because the Senate and the White House are controlled by the same party.

This is reminiscent of Jean de La Fontaine’s fable of the wolf and the lamb, whose acidic moral was that those with power always make the better argument. History is written by the winners; the rules are set by the majority. There are no principles here beyond the notion that it’s important to use the power at one’s disposal; in 2016, that meant blocking a vote on Obama’s nominee, and in 2020, that means quickly considering Trump’s.

(And please — if you’re going to play the rule-of-law card that Republican Sen. Mitt Romney of Utah played, that makes what your colleagues did in 2016 only look worse.)

Yet Republicans may also see a chance here to provoke Democrats into threatening a bunch of changes that delight the folks on the left wing but unsettle people in the middle. That would play right into Trump’s effort to portray his November opponent — former Vice President Joe Biden — and congressional Democrats as puppets of the most extreme voices in their party.

Sure enough, some Democrats and liberal pundits are casually suggesting a cascade of retaliations next year if the current Senate votes to replace Justice Ruth Bader Ginsburg. These include packing the Supreme Court with four Biden appointees to turn a 6-3 conservative majority into a 7-6 liberal edge; eliminating filibusters in the Senate on legislation, allowing a new Democratic majority to enact whatever it pleases by a simple majority vote; admitting Washington, D.C., and Puerto Rico as states, which could add four Democrats to the Senate; and even finding a way to neuter the electoral college so that the presidential nominee who receives the most votes across the country will win the election, significantly increasing the influence of Democratic-dominated California and New York at the expense of a slew of red flyover states.

Many Californians would no doubt consider these proposals sensible and even overdue. The electoral college is profoundly undemocratic; voters in lightly populated states have more sway than voters in densely populated ones. The filibuster is undemocratic too, and has been routinely used in the last couple of decades not just to stop presidents from enacting much of their legislative agendas, but also to thwart action on major, complex issues (see, for example, immigration). And the Americans who live in the District of Columbia and Puerto Rico should be able to decide for themselves whether to opt for statehood.

Plus, there’s the whole Garland thing, which has stuck in Democrats’ craw like the sting of a sucker punch.

One person’s bold change, however, is another person’s scary attack on American institutions. It’s easy to imagine how ideas like nuking the filibuster and expanding the Supreme Court will play out in Republican campaign advertisements, rallies and on cable news shows: “If you elect Democrats, they will trample on tradition and damage our great American institutions, and for what? Because they want power!”

Whether this line of attack will move many voters is an open question. But remember, Republicans’ goal this election is mainly to play defense on behalf of Trump and the Senate GOP majority. And one time-tested way to do that is to make the status quo seem safer than change, typically by making the challengers seem like radicals.

Ginsburg’s death left Democrats in a tough spot. With the filibuster removed on presidential nominees (a process started by Democrats in 2013 and completed in 2018 by Republicans), they have no brakes to press on whomever Trump nominates, regardless of how divisive a confirmation at this point would be. That’s why a number of analysts (on both sides of the political spectrum) have called on Democrats to up the stakes by making big threats, in the hope of making Senate Republicans blink.

And that may be exactly what Senate Republicans want.