Commentary

Stacked systems & a stacked court force Democrats to take rearguard action

January 30, 2022 6:59 am

Justices Kagan, Breyer & Roberts in 2018 pretending everything is normal even though Trump is president. (Photo by Chip Somodevilla/Getty Images)

Republicans hold a very solid 6 to 3 majority on the U.S. Supreme Court. Stephen Breyer, one of the three justices who was not appointed by a Republican, is retiring. If and when the person Joe Biden nominates to fill the vacancy is confirmed, the Republicans will … hold a very solid 6 to 3 majority on the U.S. Supreme Court.

Almost as much as defeated former President Donald Trump, Supreme Court nominees in recent years have whipped up the passions of so-called “conservatives” and other voters on the right. And when it comes to court warfare, Republicans have generally been more organizationally, procedurally and unapologetically cutthroat than Democrats. 

Republicans have also been blessed. Thanks in no small part to the whims and wishes of a handful of 18th century enslavers, 21st century Republicans enjoy systems that are heavily stacked in their favor.

Trump has never won more votes than his opponent in a general election. But he still named more than 200 judges to the federal courts, including three to the Supreme Court, as well as rabid right-wing ideologue, pseudo-Nevadan, and Adam Laxalt import Lawrence VanDyke to the 9th Circuit Court of Appeals.

None of that court-stacking would have been possible if Republicans didn’t benefit from the nation’s perversely outdated anti-democratic electoral college, which allowed Trump’s disastrous installation as president, and the equally perverse Senate apportionment system, by which Republicans have controlled the Senate even after elections when Democratic candidates collectively won millions more votes than their Republican opponents. 

But Republicans did benefit from those severe flaws in the U.S. system of government, they did stack the courts, they do firmly control the Supreme Court, and they will continue to firmly control the court after Democrats confirm someone to fill Breyer’s seat.

Ah, but where’s the fun in telling Republican voters that?

“This future justice is sure to have extreme views on everything from abortion to our electoral process to the idea of PACKING THE COURT with even more far-left activists!” reads an alarmist, i.e., typical, email from the Nevada State Republican Party that was sent Thursday. “If Cortez Masto and her radical, D.C. Democrat (sic) allies get their way, we might end up with the most radical Supreme Court judge the country has ever seen,” the email continues.

Whoa. Radical, dudes.

Laxalt took to social media following the news of Breyer’s retirement to proclaim his profound regard for the solemnity of the Senate confirmation process. Judging from the contempt Laxalt shows for other institutional processes, specifically legitimate elections and their legitimately validated results, the only fair conclusion to draw is that Laxalt is lying, and couldn’t care less about the confirmation process so long as his team wins.

Laxalt, who has never given any indication there is anything or anyone he wouldn’t denigrate and politicize for his own gain, also pretended to be outraged “that Senator Cortez Masto and her liberal colleagues have denigrated and politicized” the confirmation process.

To be fair,  a portion of Laxalt’s outrage may be sincere. He probably was genuinely offended to see people stray from the long-standing U.S. practice of obsequious deference to elite white male children of privilege like Brett Kavanaugh.  Or Adam Laxalt.

You have to wonder if Laxalt and the freshly subpoenaed leadership of the state GOP party are merely going through the motions though. Republican voters are already fired up for the midterms. Maybe a court culture war court fight, especially one involving – gasp! – a Black woman, could energize them even more, if that’s possible. Although asking them to get whipped up over a nomination to a court on which the right already has a death grip seems sort of like asking them to stay in the stands near the end of the game when their team leads by 47 points.

Breyer’s replacement will almost assuredly bring a broader perspective and more intellectual firepower to the left’s remaining contingent on the court. But as a practical matter, it’s hard to see how Breyer’s retirement will make any difference to the court’s decisions, at least any time soon.

If the majority of the court severely curtails abortion rights when it decides the Mississippi case this summer, that could combine with a nomination fight to actually get Democratic voters more energized about the court than Republicans for a change. The right’s control of the court could push a backlash among voters. That would be nice for Democrats, who at this point will welcome anything and everything that might drive turnout on their side.

But Breyer’s retirement and subsequent replacement amounts mostly to a rearguard maneuver: Get a nominee confirmed before the election, in case Republicans win control of the Senate.

Imagine if Breyer retired, or died, and Republicans were in charge of the Senate. Mitch McConnell has, as Laxalt put it, “denigrated and politicized” the Supreme Court confirmation process probably more than any other person in U.S. history. An empowered McConnell would never, ever let any Biden nominee have a hearing. McConnell would leave the court seat vacant in the hope Trump slithers back into the White House.

Then following a Trump restoration, some holier than thou Trump lapdog senator like Adam Laxalt could introduce some reactionary homophobe like Lawrence VanDyke to the Senate Judiciary Committee during the latter’s foregone conclusion of a Supreme Court nomination hearing. And the country could resume its forced march to the Divine Republic of Gilead in earnest, with a vitriol-fortified 7 to 2 majority on the Supreme Court. 

So those who would prefer that the U.S. not become a dystopian hellscape should breathe a sigh of relief at Breyer’s decision to retire. A 6 to 3 Republican majority on the court is more than bad enough already.

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Hugh Jackson
Hugh Jackson

Hugh Jackson was editor of the Las Vegas Business Press, senior editor at the Las Vegas CityLife weekly newspaper, daily political commentator on the Las Vegas NBC affiliate, and author of the Las Vegas Gleaner political blog. Prior to moving to Las Vegas, he was a reporter and editor at the Casper (Wyoming) Star-Tribune.

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