WASHINGTON (Analysis) — At a conference with Wall Street chief executives in late November of 2008, President-elect Barack Obama’s newly-appointed Chief-of-Staff, Rahm Emanuel, said this of the economic slowdown that had cast a pall over the country:
You never want a serious crisis to go to waste. Things that we had postponed for too long, that were long-term, are now immediate and must be dealt with. This crisis provides the opportunity for us to do things that you could not do before.»
Supreme Court Justice Anthony Kennedy’s announcement Wednesday that he is retiring from the bench has Democrats and pro-choice advocates in a tizzy at the prospect that President Trump will nominate a reactionary to replace the moderate Kennedy, and tear down the judicial firewall protecting the 1973 Roe v. Wade decision legalizing abortion. “Oh my God,” gasped one woman at a Democratic National Committee meeting on Capitol Hill when Kennedy’s retirement was announced.
But that is the reaction of a Democratic Party that has been on its heels since the Reagan Administration. As Emanuel suggested to the bankers in their dark night of the soul, Kennedy’s announcement may be exactly what the party needs to dig itself out of its doldrums.
The Kennedy crisis as political opportunity
With just a little imagination, the Democrats could well turn Trump’s nomination of a fifth staunch conservative to the Supreme Court into the proverbial rope that hangs his presidency and provides the Democratic party with an electoral majority that could endure for a generation. If the media’s narrative alleging Russian collusion with Trump is a loser because it simply doesn’t stir much passion, protecting women’s reproductive rights might resonate with more American voters today — especially with the backdrop of the #MeToo movement — than any issue save health care reform. Two-thirds of all Americans support abortion rights and, from a purely mercenary point of view, abortion rights does not put the Democrats materially at odds with their big-money Wall-Street donors the way that single-payer health care does.
The key for the Democrats is to tap into populist sentiment the way that Trump stoked racist and nationalist tensions. What I would propose is a movement, led by high-profile Democrats such as New York Senator Kirsten Gillibrand or Massachusetts Senator Elizabeth Warren, that sparks the same political electricity among the party’s key constituents — people of color, working-class white ethnics, and professional white women — and recaptures the political energy of Vermont Senator Bernie Sanders’ 2016 presidential campaign.
This strategy should not be viewed as a partisan payback for Republicans’ infamous refusal to even consider President Barack Obama’s final nominee to the Supreme Court, Merrick Garland, to fill the seat vacated by the unexpected death of conservative Justice Antonin Scalia 269 days before the 2016 election. But with 132 days to go before the 2018 midterm elections, Democrats should feel free to borrow the GOP’s language in blocking Trump’s nomination, especially that of Senate Majority Leader Mitch McConnell, who said at the time that “the American people should get a say.” With such a strong mandate, Democrats could make a nominee’s views on Roe v. Wade the litmus test for confirmation.
This is, to be sure, unlikely to happen. Were party leaders like New York Senator Chuck Schumer or California lawmaker Nancy Pelosi politically astute or imaginative, Sanders would be sitting in the White House and Medicare for All would be the law of the land by now. But in playing the long-game, high-ranking Democrats could use a hot-button, and unpopular issue like the repeal of Roe v. Wade to restart a conversation with ordinary, working-class Americans who feel abandoned by the neoliberal, pro-investor policies of first the Clinton Administration and then the Obama administration.
Whether or not the Democrats managed to block Trump’s nominee is almost irrelevant, or at least secondary to reconnecting the party’s roots to its leadership. Imagine, if you can, the political capital the Democrats would earn by organizing Occupy-style protests in which thousands take to the streets in opposition to Trump’s nomination.
The Democrats would almost certainly have to slaughter some sacred cows for this to be a viable comeback strategy. Any expansion of the conversation from abortion rights to the country’s reflexive objectification of women would likely require party leaders to re-examine questions of sexual assault made against Harvey Weinstein’s BFF, Bill Clinton. White women in the party could burnish their credentials with women of color by questioning the criminal justice system’s handling of sexual assault allegations made by women of color against powerful white men, such as those leveled by a black stripper against the Duke University LaCrosse team in 2007, or a black hotel maid against the former head of the International Monetary Fund, Dominique Strauss-Kahn. And women of color might have to do likewise in scrutinizing allegations of rape made by a white woman against the African-American basketball superstar Kobe Bryant.
And win or lose in opposing Trump’s Supreme Court nomination, there would be no turning back to the staid and uninspiring policy choices made by Democratic leaders over the next generation. The party would have to abandon any thought of re-nominating Hillary Clinton in 2020, or Joe Biden, or Wall Street favorites such as California Senator Kamala Harris or New Jersey Senator Cory Booker. Instead, they’d have to identify candidates who espouse populist policies reminiscent of Sanders campaign, both to win votes and to offset the loss of dollars from Wall Street donors turned off by the party’s transformation into a mouthpiece for the working class.
The quorum gambit?
Trump told reporters Wednesday that he would begin the process of nominating Kennedy’s replacement “immediately.” And McConnell said he would push for a confirmation vote before Election Day.
Currently, Democrats control 49 Senate seats, which is two short of the simple majority they would need to block a Trump nominee. But there are other tactics in the short-term for delaying the process if not blocking the nomination outright. University of Miami political scientist Gregory Koger, a specialist in filibustering and legislative obstructionism, explained to the online publication Vox earlier this month that, according to Article 1, Section 5 of the U.S. Constitution, “a majority … shall constitute a quorum to do business” in the Senate — meaning that Democrats can basically shut the place down by refusing to vote on anything.
With only a slim majority of two votes in the Senate, and Arizona Sen. John McCain on extended leave in Arizona as he grapples with what is likely to be terminal brain cancer, Republicans might have trouble mustering a quorum without at least some Democratic help. Democrats could deepen the GOP’s dilemma by exhorting pro-choice supporters to flood Senate offices with phone calls and emails demanding the preservation of Roe v. Wade.
If McCain doesn’t return, and the Senate splits entirely along party lines, the 50 Republican senators left in Washington would fall one short of a quorum. (Koger said it’s unclear if Vice President Mike Pence could contribute the tie-breaking vote in such a case.)
In that case, “the Senate can do nothing,” Koger concluded. “No bill can pass, no amendment can be decided on, no nominations can get approved,” and Democrats could conceivably delay a confirmation vote until a new Senate, perhaps one with a narrow Democratic majority, is seated next January.
Top Photo | U.S. Supreme Court Justice Anthony Kennedy presides over arguments at «The Trial of Hamlet,» a Shakespeare Center of Los Angeles representation of Hamlet’s trial, with a jury of 12 community members, including actors, high school students, philanthropists and Los Angeles dignitaries at the University of Southern California in Los Angeles on Monday, Jan. 31, 2011. Damian Dovarganes | AP
Jon Jeter is a published book author and two-time Pulitzer Prize finalist with more than 20 years of journalistic experience. He is a former Washington Post bureau chief and award-winning foreign correspondent on two continents, as well as a former radio and television producer for Chicago Public Media’s “This American Life.”