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You Win When You Have the Votes

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Excellent piece by Yglesias on an array of Murc’s Law-derived fallacies. First, on the deeply strange idea that Democrats didn’t really do much of anything the last time there was a unified Democratic government:

At the end of the day, the belief that getting two Supreme Court nominees confirmed reflects some kind of peculiar legislative genius on the part of McConnell doesn’t stand up to any kind of scrutiny. After all, Barack Obama and Harry Reid (the former Senate majority leader) also got two Supreme Court justices confirmed. So did George W. Bush and Bill Frist. So did Bill Clinton and George Mitchell. That’s just what happens.

It’s true that it takes a special kind of guts to press ahead with a nominee as unpopular as Kavanaugh.

But it’d be weird to argue that Obama and the Democrats showed a lack of political skill in managing to select Sonia Sotomayor and Elena Kagan, two well-liked and scandal-free Supreme Court nominees. Republican sloppiness and poor vetting aren’t the same as effectiveness.

Meanwhile, during that same period of time, Democrats actually seemed extremely ruthless and effective in getting laws passed while Republicans were curiously poor at stopping them. Democrats crafted a vast expansion of federal health care spending, raised taxes on corporations and the rich, and nationalized the student loan industry — and that was just in one bill.

OK, but those are all longstanding priorities of the Heritage Foundation, so that hardly counts.

Separate legislation completely overhauled federal financial regulation. They passed the American Recovery and Reinvestment Act (“the stimulus”), plus a couple of extra smaller stimulus bills and then a couple more during the lame-duck period. They repealed “don’t ask, don’t tell,” ratified a landmark arms control treaty, passed federal hate crimes legislation, and reformed and expanded the federal school lunch program.

Congress for the first time allowed the Food and Drug Administration to regulate tobacco products, forced new disclosure on credit card companies, established a small national public service initiative, passed the biggest public lands bill in generations, expanded the Children’s Health Insurance Program, made it easier for plaintiffs to pursue pay discrimination claims, and even passed some kind of shark conservation law.

This is actually a lot more than Republicans have gotten done in 2017–’18. You could chalk it up to Democrats being more ruthless, though I think it more likely shows that Democrats are simply more interested in policy activism. More to the point, Democrats had bigger congressional majorities, so they could get more done. Vote counts matter.

And it’s also worth noting that 1)the 60-seat window between Franken being seated and Kennedy dying was very narrow, and 2)because of the structure of the Senate a large Democratic majority will always be a lot more ideologically heterogeneous than a smaller Republican one.

Similarly, Republicans are in firm control of the Supreme Court not because of better tactics but because of the luck of the draw and America’s anachronistic electoral system:

Supreme Court justices normally time their retirements strategically so as to ensure that a president they like can appoint a successor that they like.

Consequently, at no point during the Obama presidency did it seem in any way likely that he would be able to appoint a replacement for Supreme Court Justice Antonin Scalia. Of course, though people can attempt to time their retirements strategically, human beings don’t get to choose when we die, and Scalia ended up — contrary to his intentions — dying when a Democratic president was in office.

Had Scalia died during the six-year period when Harry Reid was majority leader, Obama would have appointed his successor, and we would add “created the first progressive majority on the Supreme Court since the 1960s” to his résumé. Had Scalia lived through the 2016 election, he would have retired with Trump in office, and the process of replacing him with Neil Gorsuch would have been a normal SCOTUS succession rather than a Mitch McConnell masterstroke.

Meanwhile, in a deep sense, the foundation stone of the conservative movement’s grip on the Supreme Court is that poor health forced Thurgood Marshall to resign in October 1991, allowing H.W. Bush to replace him with Clarence Thomas. Had Marshall’s health held up for another year, he would’ve retired right around Election Day 1992 and Senate Democrats surely would have held the seat open for Bill Clinton to fill in 1993.

With five liberals on the Court in the 1990s, the new anti-regulatory jurisprudence that conservatives launched with Lopez v. United States never would have gotten off the ground, and the entire theory that the Republican Party and the Federalist Society have a superior judicial strategy would seem absurd.

That’s not to deny that McConnell is a shrewd legislative tactician — he’s an experienced politician and legislative leader, and he’s good at his job. It’s just to emphasize that in many ways, circumstances make the man.

Had the 2016 election broken slightly differently, after all, the blockage on Merrick Garland might have ended up looking like a fiasco that ultimately allowed President Hillary Clinton to swap him out in favor of a younger and more left-wing justice.

On Masrhall, it’s also worth noting that in 1991 George H.W. Bush had sky-high approval ratings, which influenced Marshall’s decision to quit. Had the war went badly or the recession hit earlier, it’s very possible he would have tried to hang on.

But one thing Democrats do need to do is advance things that are both right in the merits and consistent with their electoral interests:

The current vogue for rhetoric about “fighting dirty” is dangerous because it risks further destabilizing the political system but also because it risks discrediting ideas that are perfectly defensible on the merits.

Statehood for the District of Columbia, for example, is a completely reasonable idea that Republicans have been blocking because they are “fighting dirty” but are denying fair representation rights to hundreds of thousands of people. Democrats really should push this idea if they have the chance, but they should do it because it’s the right thing to do, not because they need to be ruthless. Similarly, if a fair referendum indicates that the people of Puerto Rico want to be a state, there is no reason to deny them their aspiration — and certainly no reason for advocates of the idea to characterize it as a form of ruthlessness.

More broadly, the biggest thing that would have left Democrats in better political shape over the past 10 years would have been a more robust recovery from the Great Recession of 2008–’09.

D.C./Puerto Rico statehood need to be towards the top of the next Democratic agenda for sure.

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