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The end of Democratic quiescence on the Supreme Court

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The Roberts Court, November 30, 2018. Seated, from left to right: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left to right: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh. Photograph by Fred Schilling, Supreme Court Curator’s Office.

Since using constitutional hardball to take over the the Supreme Court early in the Nixon administration — more on that soon — Republicans have enjoyed the best of both worlds. The Court has been generally and increasingly conservative, and yet Republicans have both placed a higher priority on and have had negative attitudes towards it. (This is indeed a crucial reason for Trump’s victory in 2016. And of course had Democratic voters shown up in 2014 we wouldn’t be in our current predicament.)

Even before Mitch McConnell announced his intention to ram through a midnight nomination to replace Ruth Bader Ginsburg, however, this was changing:

The survey, conducted amid allegations of sexual misconduct by Brett Kavanaugh, Trump’s nominee for the Supreme Court, finds that large majorities of voters in both parties view Supreme Court appointments as a “very important” voting issue.

Overall, 76% of registered voters – including 81% who support the Democratic candidate and 72% who favor the Republican candidate – say appointments to the court will be very important to their vote this fall.

Among all voters, Supreme Court appointments rank with health care (75%) and the economy (74%) among the top voting issues.

While health care and the economy typically rank among the top issues for voters, there is no trend to past midterms on the importance of court appointments.

However, more voters view Supreme Court appointments as a very important issue today than did so in June 2016, during the presidential election. At that time, 65% of voters (70% of Republicans and 62% of Democrats) said court appointments were very important.

The enormous amounts of money raised by Democratic Senate candidates last night would suggest that Justice Ginsburg’s death will (as one would assume) only accelerate the trend.

This is one reason to fight as hard as possible to stop Trump and McConnell from confirming a replacement. Will they get one rammed through? Probably. But probable is not certain. And even assuming they win the battle, there’s the longer term to consider — the only way judicial reform is going to happen is if Democratic voters are mobilized against the Court, and getting a lame-duck replacement for RBG after they refused even to grant a hearing to Merrick Garland puts the total illegitimacy of The Gang That Can’t Win A Popular Vote having an entrenched 6-3 Supreme Court majority in the starkest possible terms. This is a fight to preserve and semblance of democracy in America, and it’s not the time for cynical disengagement.

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