Republicans never talk this way: They want right-wing justices they know will further their agenda; they don’t care one bit if Democrats vote for confirmation. Democrats would be wise, for once, to go after precisely what they want: a justice with an expansive view of constitutional rights who passionately will defend voting rights, access to abortion, and gun safety consistent with the Second Amendment. These are worthy constitutional goals — and politically popular, to boot.
Now, it is possible Biden does not mean he is going to turn away a highly qualified, expressly progressive justice who is unlikely to get any Republican votes. Sounding as though you want bipartisanship is different from actually diluting your agenda for the empty goal of grabbing a couple of GOP votes.
Aside from “Who cares if Susan Collins votes for the nominee?,” the response to pleas for an equivocating, timid justice is simple: Bipartisanship has proved to be a one-way street, which is not a goal unto itself. Moreover, the stakes have changed. The right wing has an impenetrable majority of at least five, often six justices. Democracy defenders and civil rights advocates should aim to seed dissents with stinging rebukes of judicial arrogance, dissents that over time (after the right-wing justices have departed) can provide the framework for recapturing the constitutional rights and judicial legitimacy this court has sabotaged.
The new justice, together with Justices Sonia Sotomayor and Elena Kagan, should think strategically about the best way to slow down the right wing’s runaway court as it barrels toward dismantling precedent and heretofore secure constitutional rights.
For starters, progressive justices should encourage and publicly endorse ethics and disclosure rules that require more transparency about recusal, push to ban individual stock ownership and reinforce norms about not endorsing/appearing at partisan events. The push for reform must come from within the court.
Second, the new justice and her allies need the fortitude and smarts to dismantle the canard of judicial textualism and originalism that cloaks the right wing’s judicial imperialism. The court’s rewriting of voting laws is an egregious example of judicial overreach. Its cramped view of due process and the right to privacy is at odds with the notion of limited government and freedom of conscience as established over decades of legal precedent.
Third, it is time to make the broader political case that the right-wing justices are at risk of undermining our democracy. They were confirmed by an unrepresentative Senate, and three of them were appointed by a president who never got a majority of the popular vote. Lacking any semblance of the diversity of the country and espousing viewpoints grounded in religious faith that clash with societal norms, they have frittered away their credibility. Progressive justices must make that broader argument to augment grass-roots efforts to rein in the court.
What is not needed is a justice “who can persuade other justices,” as some naïve commentators have urged. Let’s get real: At least five right-wing justices are immune to persuasion. They are staunch partisans who reflexively take the side of Republicans, consciously or not. (It hardly matters.) It’s a fool’s errand to try to convince a Justice Samuel A. Alito Jr. or a Justice Neil M. Gorsuch that the court risks its legitimacy by shredding precedent in defense of a religious and political view wildly out of step with the American people. And there’s little to be gained by sometimes winning over the chief justice — simply to reduce the right-wing majority from six to five.
In short, Republicans didn’t nominate centrists interested in winning over, say, Kagan. They staked out firm ideological ground and used political muscle to obtain their ends. The result is a frightening spasm of judicial power-grabbing based on a reactionary ideology and aversion to federal enforcement of fundamental rights. To counteract this, we need a new sort of justice able to expose right-wing judicial overreach and lay the foundation for return to sound jurisprudence.
Who cares if she gets a couple of Republican votes? We’re talking about launching a methodical initiative to take back the court and protect democracy. Get the sharpest mind, the most courageous soul and the most dedicated warrior in the battle to defend democracy.