Look, Massachusetts Democratic Senator Ed Markey is a good person, but these are exactly the wrong instincts (boldface mine):
Sen. Ed Markey (D-MA) said Monday that, if Democrats regain control of the Senate and the White House, they will reverse Republicans’ change to the filibuster rules for Supreme Court nominees.
On Thursday, the Senate voted on party lines to change those rules so that votes to confirm high court nominees could proceed without what previously was the 60 votes necessary to end debate on the nominations.
In 2013, Democrats voted for the same rule change, but only for lower court and executive branch nominees.
“When the Democrats return to the majority and capture the presidency, which we will, that day is going to arrive, we will restore the 60-vote margin,” Markey told MSNBC’s Katy Tur. “We will ensure that, for the Supreme Court, there is that special margin that any candidate has to reach because that is essential to ensuring that our country has a confidence in those people that are nominated, rather than just someone who just passes a litmus test.”
Let’s leave aside that this gives Republicans, who due to state boundaries and so on, a de facto veto over Democratic appointments. Actually, let’s not: why would Markey propose this? If nothing else, it means Republicans, even in the minority, have one more way to thwart the will of Democratic voters (we’ll return to this point in a bit).
But there’s a larger issue here about the Supreme Court (boldface mine):
Ferdinand Pecora, who was a judge after he was the scourge of Wall Street, mocked the idea that wearing a robe gave someone special wisdom and singled out for special ridicule the Supreme Court justices who had lauded the virtues of Wall Street before the 1929 crash. Thurgood Marshall resented the Harvard elites from whom he was excluded, and recognized that a legal elite could be as destructive as any other out-of-touch apologist for racial or political privilege. And during the New Deal era, Congress was willing to investigate problems in the judiciary when the courts thwarted democratic attempts to redress widespread economic collapse.
Since the Bork confirmation hearings in 1987, many top legal professionals—from both parties—have preferred not to talk honestly to the American public about the nature and scope of legal power. Bork was actually willing to have a debate over his ideas, and the Senate blocked him because the Senate majority did not agree with his anti-democratic understanding of the Constitution. After Bork’s nomination was voted down, the legal profession settled on the norm that nominees shouldn’t tell the Senate what they thought about anything. So while everyone knew that John Roberts was lying when he said he’d just call balls and strikes, that a judge was an umpire, that he’d respect precedent. Citizens United was his big reveal. In that disastrous ruling, he pulled off his Scooby Doo villain mask to reveal that under his slimy corporate lawyer exterior he was a slimy corporate lawyer….
It’s time for citizens to demand that Congress stop kow-towing to the legal establishment club and use their own power to reshape the Supreme Court to serve American democracy. Nothing in the Constitution prevents our making the Supreme Court a panel of a hundred judges, so that offending one wouldn’t be a big deal. Nothing prevents forcing the sitting judges to ride circuit all over the country, so that a Samuel Alito or Clarence Thomas couldn’t just sit in D.C. and radiate power outward to parts of the country they never see. Nothing prevents Congress from putting televisions in the court, so that Americans can watch the people who are making crucial decisions that affect—and curtail—their rights. Nothing prevents Congress from investigating the judicial junkets that the justices now soak up, such as the luxury hunting trip funded by wealthy interests that Scalia was savoring when he died. Nothing prevents the executive branch from indicting Clarence Thomas for taking a half a million dollars in bribes undisclosed through his wife’s relationship with right-wing think tanks (yes, he did this, and yes, the Obama administration did nothing about it)…
None of this should be done lightly. Congress needs to make a case, a very public one, that the court is standing against the needs of our democracy, before embarking on the reformist options embedded in the Constitution. But fundamentally, Congress needs to recognize that the Supreme Court is a political institution and is shaped by politics. If Senate Majority Leader Mitch McConnell is willing to subvert norms to seize power on the court, the strategy can’t be to wait forty years until Gorsuch is gone. It must be to reclaim the court for American democracy. And that means understanding that the court is actually susceptible to public opinion. The justices are at the end of the day simply politicians, and the Constitution is a very flexible document.
If appointing two additional Democratic nominees to the Supreme Court were to give Fred Hiatt and the rest of the Washington Post editorial staff aneurisms, I’m still not seeing the downside. And if you’re wondering what would stop Republicans, were they to regain the Senate and the Presidency, from doing the same, the answer is nothing. Which is a good thing, since elections should have consequences. Re-establishing norms–norms that have essentially been abandoned by one side–that limit little-d democratic accountability isn’t a good thing.
Up your long-term game Democrats.