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The litany of almost daily horrors outre-Atlantique has moved to a whole new level these past two weeks—and worse is yet to come, that is a certainty—with the family separations at the Mexican border and the latest SCOTUS rulings—on purging voters, gerrymandering, the Muslim travel ban, unions… And now there’s Anthony Kennedy’s announced resignation. Now Kennedy is no great shakes—he’s hardly been the moderate centrist he’s often made out to be—but the nightmarish prospect of Trump naming another Gorsuch-like reactionary to the Court will now happen, and the Democrats can’t do a thing to stop it. Pundits and other analysts are reasonably predicting that conservatives will now have a lock on the Court—and, increasingly, the entire federal judiciary—for at least a generation, and with the inevitable, unthinkable—but very real—consequences, e.g. gutting the Voting Rights Act, repealing Roe v. Wade, returning to Lochner v. New York, and you name it.
But this is not a fatality. The Democrats can fight back once they retake Congress—this November, inshallah—and then the White House in ’20—which will happen if Trump’s poll numbers do not significantly rise from where they’ve been for the past eighteen months—by adding SCOTUS justices, i.e. packing the Court. The constitution says nothing about the number of SCOTUS justices being limited to nine. Constitutionally speaking, there is nothing to prevent the president from nominating new justices and Congress approving them. The proposal—which, in view of the national emergency unfolding before our eyes, is eminently sensible—is spelled out in a new book by political scientist David Faris, who teaches at Roosevelt University in Chicago, It’s time to fight dirty: How Democrats can build a lasting majority in American politics. The arresting title was no doubt cooked up by the publisher to sell copies, as Faris doesn’t talk about ‘fighting dirty’ so much as playing the game the Republicans have for years now, which is constitutional hardball, or procedural warfare: to maximize their advantage when they have the majority to advance their agenda. Do what the constitution permits and to hell with norms, comity, bipartisanship, reaching across the aisle, and all that hooey. Democrats need to act like Republicans, so Faris argues. They have to fight fire with fire. And try to reverse the damage inflicted on the body politic and the nation.
In regard to the Court, I would argue that the Dems should add two or three justices and then propose to the Republicans that, in return for adding no more, there should be a constitutional amendment imposing renewable 12-year terms for SCOTUS and all federal judges, and with a mandatory retirement age (between 75 and 80), and applying to all those currently serving (for current SCOTUS justices who’ve been around longer than the twelve years, they would come up every two years, beginning with the longest serving; I had a couple of posts on this some six-seven years ago). Seriously, why not? Should the Democrats—and the tens of millions of Americans who vote for them—simply accept the consequences of a rigged process and which could last for decades?
In addition to packing the Court, Faris proposes breaking up California into seven states—which can happen by a simple vote of the California state legislature—and with the District of Columbia and Puerto Rico declaring statehood, all to increase the number of Democratic senators, as the US Senate, with its two senators per state rule and regardless of population, skews representation like no other parliamentary body in any advanced democracy. Faris also proposes nuking the filibuster, which will obviously be necessary for any of this to happen. I’m dubious about breaking up California—I just don’t see that happening under any circumstance—but the imperative of statehood for D.C. and especially Puerto Rico—neither of which I have favored in the past—are now clear. For an elaboration of Faris’s arguments, see Sean Illing’s interview with him in Vox and Zachary Roth’s review of his book in the NYT.
As the congressional Democrats are well known p*ssies, one may doubt that they will consider anything Faris proposes. But the Dem winds are shifting, as we saw with Alexandria Ocasio-Cortez’s victory in the NY 14th CD on Tuesday, so the party’s composition—and disposition—may well evolve in the coming election cycles..
À propos of all this, Will Wilkinson of the Niskanen Center has a terrific op-ed in the NYT dated June 27th, “Why do we value country folk more than city people?,” in which he focuses on the heavy skew in representation in favor of GOP-voting rural areas and to the detriment of Dem-voting cities, and the deleterious consequences of this across the board. If one needs an argument in support of David Faris’s position, this is a big one.
I was talking yesterday with an American friend who’s in Paris for the summer, who was in a state of deep despair over what’s happening back home. I reminded him that there are more of “us” than there are of “them.” We are the majority. And at some point—sooner rather than later, inshallah—the majority will rule.
UPDATE: On the possible consequences of the Kennedy retirement, Josh Marshall of TPM received an email from “a former federal public corruption prosecutor.” Read it and worry.
2nd UPDATE: Slate’s Mark Joseph Stern has a post, “A new Lochner era,” that underscores the pertinence, indeed urgency, of David Faris’s proposals. The lede: “In the early 20th century, the Supreme Court systematically gutted regulations to favor business and attack organized labor. Those dark days have returned.”
3rd UPDATE: Also pertinent is Dana Milbank’s column (June 29th) in The Washington Post, “An explosion is coming,” on the inevitable, furious backlash from the Democratic Party electorate if the Republicans steamroll ahead in implementing their agenda, as they certainly will. On this, one must not forget that there are more Democrats than Republicans. We are more numerous than them.
4th UPDATE: Todd Gitlin has a worthwhile tribune (June 29th) in The Washington Post, “This was the most gutting month for liberals in half a century: Does the arc of the moral universe still bend toward justice?”
5th UPDATE: The NYT’s Michelle Goldberg has a must-read column (June 30th), “The millennial socialists are coming.” She could have added Generation Z as well. A friend in Washington DC has posted this comment on her Facebook page in regard to her high school-age son, whom she says
has been engaging us in heated discussions about the pros and cons of socialism for months. We couldn’t understand why this was so important and present for him – to us socialism seems a thing of the past and primarily a theoretical proposition. According to him, it’s at school and everywhere – a new wave of young people who see socialism as a remedy to inequality and, especially, the inaccessibility of education and health care.
Ça chauffe le cœur.
6th UPDATE: Another must-read column, this (June 26th) by The Irish Times’s very smart Fintan O’Toole: “Trial runs for fascism are in full flow.” The lede: “Babies in cages were no ‘mistake’ by Trump but test-marketing for barbarism.” Okay, the F-word may be a stretch but the point is well taken.
7th UPDATE: For those who think that the Dem party is about to lurch way to the left, read this piece in Politico Magazine (June 27th) by Bill Scher, “No, Ocasio-Cortez is not launching a socialist revolution.” The lede: “The Bernie Sanders wing of the Democratic Party is here to stay. But so are all the other wings.”
8th UPDATE: Adam Shatz has a typically excellent commentary—based in part on discussions he and I have had in the past week, so he tells me—in the LRB blog (July 2nd), “American carnage.”
9th UPDATE: Journalists Zaid Jilani and Ryan Grim have an interesting article (July 2nd) in The Intercept, “Data suggest that gentrifying neighborhoods powered Alexandria Ocasio-Cortez’s victory.” Longtime black and Latino residents in the district stayed with the incumbent Joe Crowley. That makes sense.
10th UPDATE: It turns out that enlarging the Supreme Court is being widely debated on the left these days. E.g. see the primer (July 2nd) by Dylan Matthews in Vox, “Court-packing, Democrats’ nuclear option for the Supreme Court, explained: Why an FDR plan from the 1930s is suddenly popular again,” in which he discusses the pros and cons, and links to other pieces, such as one in TNR, dated May 10th, by the invariably first-rate Scott Lemieux.