America is facing two urgent problems right now. First, the Supreme Court’s conservative supermajority is using its power to roll back decades of progress, reshaping the law in all the ways their wealthy benefactors want. They are doing so with the enthusiastic support of the Republican Party, which loves rolling back decades of progress almost as much as it loves wealthy benefactors. Second, the Democratic Party—ostensibly the party opposed to all these things—is led by people whose solution for the intertwined crises of reactionary jurisprudence, naked corruption, and Republican intransigence is “send strongly worded letters and hope for the best.”
Last Sunday, Illinois Democrat Dick Durbin appeared on CNN’s morning show, State of the Union, to discuss the suddenly-very-much-in-flux agenda of the Senate Judiciary Committee, which Durbin chairs. Democrats hold a one-vote majority on the committee, which means that the months-long medical absence of California Senator Dianne Feinstein has ground its proceedings to a halt: Without Feinstein’s vote, Democrats cannot advance President Joe Biden’s nominees without Republican support, which has not exactly been forthcoming. And as evidence of the Supreme Court’s ethical lapses continues to pile up, Democrats have also been unable to subpoena the testimony of Clarence Thomas or Neil Gorsuch or John Roberts or anyone else, since, again, no Republican senator would ever dream of backing such a move in this lifetime or the next.
On Sunday, host Jake Tapper focused his questions on Durbin’s handling of Feinstein’s extended absence. “At what point do the tens of millions of voters currently lacking full representation in the Senate matter more than the feelings of a colleague whose health has been questioned for a long time?” he asked. After Durbin delivered an impossibly convoluted answer in which he at once reiterated the importance of her vote while cautioning that the situation is “very complicated,” Tapper grew incredulous.
“All due respect, sir—you and your fellow Democrats were very ginger and very polite when it came to Justice Ruth Bader Ginsburg, and not pushing her to retire when you had a Democratic majority in the Senate,” he said. “How’d that work out for you? How’d that work out for Roe v. Wade?”
Dang. Jake Tapper to Durbin: “All due respect, sir, you and your fellow Democrats were very ginger and very polite when it came to RBG and not pushing her to retire when you had a Democrat majority in the Senate. How’d that work out for you? How’d that work out for Roe v Wade?” pic.twitter.com/fC4RdQMHbu
— Aaron Rupar (@atrupar) May 7, 2023
Durbin’s second answer wasn’t more responsive than his first. But the question at least made clear the real-world stakes of failed leadership that Durbin’s genteel hemming and hawing glossed over. Democrats’ rigid observance of (what they imagine to be) the unwritten rules of Washington has been devastating for the causes they purport to champion. A new study estimates that if Ginsburg had retired before 2015, as many called for her to do, liberals would have retaken the Supreme Court by 2029 and controlled it for about half of the following century. Now, unless Democrats add seats to the Court, liberals aren’t likely to control it again until 2065, when every sitting senator might very well be dead.
The death of Roe v. Wade is a terrible price to pay for Ginsburg’s miscalculation, and a major reason why Democrats were far less “ginger” when calling for Justice Stephen Breyer’s strategic retirement a few years later. Yet instead of learning from this experience, many in party leadership remain unwilling to risk awkward conversations with longtime colleagues next time they run into one another at Cafe Milano. If Democratic politicians still have nothing to say about irresponsible stewardship of fleeting power, the least reporters can do is make them squirm a little when the lights are hot.
This might feel unfair to Durbin and company, since highlighting their tepid enthusiasm for addressing judicial corruption subjects them to a far higher standard than Republicans, for whom judicial corruption is a perk of the job, not a problem that requires intervention. But meaningful leadership here requires more than being marginally better than the worst people in Washington. Republicans who abuse their power to do bad things are unequivocally bad; Democrats who think it uncouth to use their power to do anything are enabling Republicans’ unequivocal badness. Tapper’s interview of Durbin is how journalists should be talking to Democrats right now: calling them out for being asleep at the wheel, instead of congratulating them just for being in the driver’s seat.
Fortunately for Biden’s nominees and/or my blood pressure, Feinstein at last returned to work this week, albeit on a “lighter schedule” for a yet-to-be-determined period of time. On Thursday, she was able to break a deadlock on three judicial hopefuls whose nominations had languished in committee during her absence. She told reporters that she feels “better,” or perhaps even “much better,” which is great, to the extent that any detail about a system of government that hinges on an 89-year-old’s ability to fly across the continent and raise her hand when called upon can ever be described as “great.”
— Camila DeChalus (@cdechalus) May 10, 2023
Feinstein’s presence, however, only gives Democrats the tools to act. In order to accomplish anything, they still have to overcome the same skittishness that made them so reluctant to acknowledge Feinstein’s failures in the first place. In the past month, John Roberts has refused Durbin’s “invitation” to testify about Supreme Court ethics, citing “separation of powers” concerns. Harlan Crow, a rich guy who apparently believes his patronage of Clarence Thomas imbues him with the power of the federal judiciary, has done the same. Nearly three dozen Biden nominees are waiting on their Senate confirmations. Of the 63 federal vacancies without a nominee, 40 are district court judgeships in states where Republicans can veto nominees under the antiquated blue slip tradition that Durbin continues to honor.
Crossing these items off the to-do list will take political courage. Carefully-workshopped letters that everyone knows go directly into Supreme Court-branded recycle bins are not going to cut it.
As thin as the Democrats’ Senate majority is, this is a really, really good time for them to have it: The combination of reactionary Supreme Court opinions and outlandish Supreme Court corruption stories is generating real momentum for Supreme Court reform. Democrats obviously can’t legislate by themselves, but they can get rid of blue slips, thus rendering Josh Hawley’s mewling objections to Missouri judicial nominees irrelevant. They can subpoena Clarence Thomas, forcing him to either answer for his violations of the law or publicly take the position that he is above it. They can hold hearings about the multitude of extremist Supreme Court opinions that are making life worse for millions of Americans—hearings that can build critical support for Court expansion now in anticipation of a future unified Democratic government.
Dead-end collegiality and endless procrastination have consequences. Democrats found out the hard way already. They don’t have to do it twice.