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Politics is an iterated game


I wrote recently about how Republicans filling a last-minute or especially lame duck Supreme Court vacancy with Trump way behind in the polls or having lost is exactly the kind of thing (like the blockade of the D.C. Circuit) that can radicalize institutional conservatives. Moderate Democrats have started to signal this even more quickly than I thought:

Democrats are warning Republicans not to fill a possible Supreme Court vacancy this year after denying President Barack Obama the chance in 2016, saying it would embolden a push on the left to add seats to the court whenever they regain power.

“We knew basically they were lying in 2016, when they said, ‘Oh, we can’t do this because it’s an election year.’ We knew they didn’t want to do it because it was President Obama,” Sen. Tim Kaine, D-Va., said in an interview.

Kaine, the party’s last vice presidential nominee and a lawmaker with a reputation as an institutionalist, said confirming a nominee of President Donald Trump this year could compel Democrats to consider adding seats to the high court.

“If they show that they’re unwilling to respect precedent, rules and history, then they can’t feign surprise when others talk about using a statutory option that we have that’s fully constitutional in our availability,” he said. “I don’t want to do that. But if they act in such a way, they may push it to an inevitability. So they need to be careful about that.”

In a sweeping statement of intent, the Democratic National Committee is poised to add language to the party’s 2020 platform endorsing “structural court reforms to increase transparency and accountability.”

The draft language, reviewed by NBC News and expected to be approved later this month, denounces Republicans as having “packed our federal courts with unqualified, partisan judges who consistently rule for corporations, the wealthy, and Republican interests” and for “blocking a Democratic president from appointing a justice to the Supreme Court.”

Judicial power is inherently fragile, and attempts to permanently entrench a minority faction through the judiciary are ultimately unsustainable. If Republicans get a 6-3 majority that refuses to allow Democratic majorities to govern, the Court is going to come under serious attack (as it should.) I don’t know if it would happen in 2021 but it would happen eventually.

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