This Is No Time For Liberal Despair

Posted July 8, 2018 2:29 p.m. EDT

The fight over President Donald Trump’s second Supreme Court nominee is going to feel frustrating for Democrats. Not long after stealing one Supreme Court seat, Republicans will have a chance to fill a second and move the court further to the right.

Yet the confirmation process could still turn out to be productive for Democrats — or it could become the worst of all worlds, both frustrating and damaging. The key now for the party and its voters is to understand the difference between those outcomes. Here’s a three-step guide to doing so.

Step one: Be realistic.

Trump’s nominee is overwhelmingly likely to be confirmed regardless of what actions Democrats take. Republicans hold the Senate majority, and every Republican senator — yes, including Susan Collins and Lisa Murkowski — has a history of voting for judges like those Trump is considering. Collins and Murkowski have a script: They make centrist-sounding statements, to shore up their images, and then vote aye.

So Democrats should go into the confirmation debate recognizing that it is almost certainly unwinnable. It will not depend on how hard Democratic leaders fight or which tactics they choose, alluring as that fantasy may be. In these polarized times, court nominations unite political parties, even more than individual issues, like, say, health care.

Shortly after Justice Anthony Kennedy retired, Sen. Elizabeth Warren called the coming nomination “the fight of our lives.” It is not. The great political fights are still ahead. When a new justice is sworn in this fall, Democrats should not declare generational defeat or turn on each other.

Step two: Don’t lose hope.

Harvard political scientist Theda Skocpol has spent decades studying political power and change, from the Civil War to the Tea Party and anti-Trump resistance. She believes that Kennedy’s retirement can be a clarifying moment for American liberals.

Over the last half-century, conservatives have put more energy into building a movement — creating ideological institutions, grooming judges and, perhaps above all, winning local, state and congressional elections. Democrats have emphasized higher-profile politics, like the presidency and landmark court cases. Democrats can’t afford to do so anymore.

For years to come, the Supreme Court is likely to have a very conservative majority. But remember that the modern conservative movement began when the court seemed implacably liberal, under Chief Justice Earl Warren in the 1950s and ‘60s. “Conservatives were facing a Washington complex that horrified them,” Skocpol told me, “so they built from the bottom up.”

Remember, too, the limits of the court’s power. On some big issues, the court is not imposing right-wing policies on the entire country. It is instead refusing to ban state-based right-wing policies — like abortion restrictions and partisan gerrymandering — that progressives consider unconstitutional. (And, by the way, the court was already doing so with Kennedy.)

Progressives can still win many of these issues. They simply will have to do so in a small-d democratic way, by winning elections — as they’ve begun to do lately. If Democrats win more governorships and state legislatures, they can keep Republicans from drawing ridiculous congressional maps and infringing on African-Americans’ voting rights — among many other things. If Democrats retake Congress this fall, they can halt the Republican legislative agenda and gain subpoena power.

I realize that a post-Kennedy Supreme Court may one day start throwing out progressive legislation, as happened in the early 20th century. But that’s a fight for another day. Most experts I’ve talked to — scholars and people in politics — believe that elected politicians can prevail in a long-term struggle with unelected judges. Regardless, until Democrats win more elections, it’s a hypothetical concern. “The potential center-left majority in this country — and it’s very real — has to actually organize and elect people to office,” Skocpol says.

Step three: Know your strengths.

Some Democrats will be tempted to turn the next two months into a national conversation about abortion, affirmative action and other social issues that inspire liberal passion. That would be a mistake. Those are not the best issues for Democrats during a midterm campaign.

The best issues are those on which Democrats hold a decisive advantage in public opinion. Health insurance is a good example. So are taxation, corporate power and the Trump administration’s corruption. All of these issues can be grist for a nominee’s Senate hearing.

I’m not suggesting that Democratic senators ignore social issues. They just shouldn’t fool themselves into thinking that the country is further to the left than it is. For instance, about two-thirds of Americans believe abortion should be illegal at least sometimes, according to Gallup, and many of the strongest opponents base their votes on the issue. That’s why Republicans are happy to have these arguments.

Nothing in American politics matters more right now than the outcome of the midterms. It is the difference between emboldening Trump and starting to hold him accountable. It really may be “the fight of our lives.” And unlike the confirmation battle, the midterms remain up for grabs. In the coming weeks, Democrats will be talking about the Supreme Court, but they should be thinking about the midterms.

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