Senate Minority Leader Chuck Schumer’s verbal threats against two Supreme Court justices aren’t surprising, in light of three years of “resistance” hostility to Trump judicial picks. What is remarkable is that Democratic leaders continue to take such a losing approach to an issue that will be central to the 2020 election.
Mr. Schumer did hit a new low Wednesday, when he stood outside the Supreme Court and rallied a mob of abortion-rights activists by vowing that Justices Brett Kavanaugh and Neil Gorsuch would “pay the price” for releasing “the whirlwind.” “You won’t know what hit you if you go forward with these awful decisions,” he thundered. When even liberal legal scholar Larry Tribe called the remarks “inexcusable,” Mr. Schumer made a halfhearted attempt to walk them back, saying he “shouldn’t have used the words.”
Yet the Schumer threats are of a piece with today’s standard Democratic approach to the court: Attack and intimidate. Of everything Democrats lost to Donald Trump in 2016, the forfeiture of the judicial branch still grates the most. They remain furious that Obama nominee Merrick Garland never got his Supreme Court robe. They are livid that the Kavanaugh confirmation provided the high court its first solid conservative majority in decades. They are outraged that Senate Majority Leader Mitch McConnell has confirmed nearly 200 Trump judges, including 51 on the appellate courts.
Unable to stop the appointments, Democrats have shifted to threatening the appointees. These have included attacks on individual judges. The hit job in 2018 on Judge Kavanaugh was about defeating his nomination, or at least cowing him into more liberal rulings. Since his confirmation, Democrats have continued to hold the threat of impeachment over his head, again in the hope of intimidating him into taking their side on key cases.
Or take Massachusetts Sen. Elizabeth Warren’s sucker punch of Chief Justice John Roberts during the Trump impeachment trial, in which she forced him to read aloud her question challenging his “legitimacy.” Even Justice Sonia Sotomayor got in on the action, with a recent opinion that outrageously suggested her fellow conservative justices were biased in favor of Mr. Trump.
Then there are the ceaseless threats to the institution. Rhode Island’s Sheldon Whitehouse and four other senators last year filed a friend-of-the-court brief warning of political consequences if the justices didn’t side with them against gun rights. “The Supreme Court is not well,” the brief asserted. “Perhaps the court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ ”
Liberal proposals to remake the judicial branch are a dime a hundred. Some propose packing the Supreme Court by increasing its size and creating new vacancies for a Democratic president and Senate to fill. Others demand term limits, though that would require a constitutional amendment. Yet others propose stripping or curtailing the judicial branch’s authority to review entire swaths of legislation.
Mr. McConnell, in a Thursday floor speech rebuking Mr. Schumer, likened the left’s message to a gangster’s intimidation: “That’s some nice judicial independence you got over there. It’d be a shame if something happened to it.”
The attacks and threats thrill the progressive base, but they are about as politically wise as impeachment. The most important step Mr. Trump took on his path to the presidency was releasing his list of proposed replacements for the late Justice Antonin Scalia. That inventory of impressive jurists not only reassured conservatives but motivated them to vote.
Mr. Trump will make sure his court successes are at the center of his re-election campaign. He will again highlight the stakes, especially for the Supreme Court. And here are Democrats making his case more powerful by promising not only to put an end to Trump picks, but to undo his court victories to date. Talk about a Republican turnout motivator.
Democratic court radicalism also has the potential to turn off centrist voters. This week saw Super Tuesday voters offer a stark rebuke to Bernie Sanders’s burn-it-down politics. (Mr. Sanders’s proposal is to transfer the high court’s conservatives to a different court and replace them with his own picks.) A 2019 Rasmussen poll found only 27% of Americans open to court packing. Even as American faith plummets in most government institutions, the public retains broad support for the Supreme Court. They don’t appreciate the attacks.
Instead of trashing the court, maybe Democrats could make their own lists of Supreme Court picks. They’ll need to do something, because the court issue is coming at them like a freight train. And all they’ve got is venom.
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