Democrats Need to Play Hardball

Marlon Weems

Bipartisanship is nice, but Democrats are in charge. They need to act like it.

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Photo by René DeAnda on Unsplash

When I was in the 7th grade, my family moved to Pine Bluff, Arkansas. The first person that befriended me was Jimmy, an older kid that lived across the street from my house. We hit it off immediately. Jimmy introduced me to the other kids in the neighborhood. He picked me to be on his team for sandlot baseball games. His charm won my parents over.

But it only took me a few weeks to realize something about Jimmy: he was an enormous bully. If his team lost a baseball game, he started a fight. When we played pickup basketball games, he’d always cheat. A hail of profanity and violence awaited any kid bold enough to call out Jimmy’s cheating.

Before long, I found myself on the receiving end of Jimmy the Bully’s temper. What started as a friendly shove for a botched play escalated to a punch on the shoulder. My brothers and I were raised not to fight, so I offered little resistance.

One hot summer night, Jimmy invited my brothers and me outside to hang out with the other kids in the neighborhood. As soon as I walked across the street, I knew something was wrong. I never learned what triggered my confrontation with Jimmy that night. Perhaps someone told him I said something insulting about him, or maybe he didn’t like the shirt I wore that night.

All I remember is kids gathering around the two of us, a punch in the face, and my glasses flying into the darkness. I remember the shape of a blurry fist making contact with one of my nearsighted eyes. Everyone has a breaking point. That night, as I stood there, my cheekbone stinging, searching the darkness for my glasses, I realized I’d reached my limit. I’d had my fill of Jimmy the Bully. Although I wasn’t supposed to, I had to retaliate. So I did what no one else in the neighborhood did.

I punched Jimmy back as hard as I could.

My punch sent a thoroughly astonished Jimmy sprawling onto the pavement. I took advantage of the element of surprise, continuing to punch away. In the end, I lost that fight. Adults intervened before it went too far, as was the case with most dust-ups in those days.

But after that night, no one in the neighborhood ever laid a hand on me, not even Jimmy, the neighborhood bully.

Out of respect.

Days after the death of Justice Ruth Bader Ginsberg, President Trump made the following comment during a call-in interview on Fox & Friends:

“You know, we won the election, and elections have consequences,” Trump told “Fox & Friends.” “It’s called you pick people from the Supreme Court, and you pick judges, too. We have, we’re going to have almost 300, about 300 judges at the end of my first term, which will be a record. It’s a record, and that happened because President Obama left us a tremendous number of justices and judges that he couldn’t, either couldn’t fill or didn’t work hard enough, or maybe he thought Hillary [Clinton] was going to win, and he didn’t push it…”

Let’s overlook the stereotypical, racist overtones of Trump’s suggestion that his predecessor, America’s first Black president, was too lazy to do his job. In reality, three words sum up the reason for the significant number of judicial vacancies at the end of Obama’s second term: Senator Mitch McConnell.

McConnell not only blocked President Obama’s judicial nominations during his last two years in office, but he also obstructed Obama’s choice for a Supreme Court seat, Merrick Garland — nine months before the 2016 election.

Under Mitch McConnell’s leadership, the Senate confirmed just 20 district and circuit court judges by the end of 2019, including 6 Circuit Court nominees — despite numerous vacancies. By comparison, the Democrat-led Senate confirmed 68 judges during George W. Bush’s last two years in the White House.

McConnell confirmed more than 200 of Trump’s judicial nominations. For years, the Kentucky senator has been the Republican Party’s version of Jimmy the Bully, snatching the Democratic Party’s lunch money while punching it in its proverbial mouth.

Hypocrisy as a platform plank

McConnell did not act alone. All Senate (and House) Republicans are in complete lockstep with him, and by extension, the Trump White House. The last few weeks of drama underscore why Republicans tolerate Trump — you can almost hear them saying, ‘So what if the President is a liar and a crook, we got our judges…plus lower taxes for our donors!’

The nomination of Amy Coney Barrett to the Supreme Court of the United States (SCOTUS) is a case study in Republican hypocrisy — even on Coney Barrett’s part. In a 2016 interview on CBS, the future Supreme Court nominee not only argued against the nomination of a replacement for the seat held by Antonin Scalia before the 2016 election, but she also argued against filling the Scalia vacancy with a justice holding different political views. Based on her 2016 arguments, Judge Barrett should have refused President Trump’s nomination.

Speaking of stolen seats, there is an argument to be made that Barrett’s current position on the Seventh Circuit Court is itself a stolen judicial seat. Trump nominated Barrett to the Seventh Circuit in 2017, but why was that seat vacant in the first place? The NAACP recently weighed in on the legitimacy of Barrett’s current judicial seat:

“Amy Barrett is already sitting in an illegitimate judicial seat — a seat that was stolen by Republican Senators and Donald Trump. In May 2017, Donald Trump nominated Barrett to an Indiana seat on the Seventh Circuit, which covers Indiana, Illinois, and Wisconsin. This is the same seat to which President Obama nominated Myra Selby, a Black woman, in 2016. But Republican Senators blocked Selby’s confirmation and saved the seat for Donald Trump. After Trump was elected, the Seventh Circuit lost its only Black judge to retirement. The Shelby appointment would have retained diversity on this court. Instead, Trump appointed four white individuals, including Amy Barrett. The Seventh Circuit is now the only all-white federal appellate court in the country.” ~NAACP

Myra Selby was a former Indiana Supreme Court Justice and the first Black woman to sit on the State’s highest court. She would have been the first African American from Indiana and the first woman from the State to serve on the court. But then-Senator Dan Coates, a Republican, blocked Selby from a hearing by not returning what is known as a ‘blue slip.’

As a result of Coates withholding his blue slip, Mitch McConnell could leave the seat open — allowing Trump to fill the vacancy by nominating Amy Coney Barrett. The United States Court of Appeals for the Seventh Circuit is now the country’s only all-white federal appellate court. For those unfamiliar with blue slips, here’s an explanation, at the risk of getting too deep into the weeds:

“In order to ensure that senators have a real say on judicial nominees, every senator — from both parties — has veto power for their state’s judges in the form of a century-old blue slip tradition. Blue slips are simply pieces of paper that a senator turns in to state whether she or he has concerns about the Senate moving forward in considering the nominee. But if the president hasn’t consulted with a home state senator when considering potential nominees, or if he has nominated someone who is too extreme — or if the senator simply needs more time to review a nominee’s record — the senator can stop the process by not turning in their blue slip. No blue slip, no confirmation. It is a long-standing tradition: Democrats have always respected GOP senators’ blue slip privileges, and a Democratic president’s nominees have never been confirmed without blue slips being returned.” ~People for the American Way

This means it takes both senators from a state for judicial nomination to move forward. The blue slip gives a senator veto power over a given nomination. It’s a tradition in the Senate that goes back 100 years. That is until Republicans decided the practice no longer suited them.

In 2018, Democratic Senator Tammy Baldwin, also of Wisconsin withheld her blue slip, denying her consent to Michael Brennan, Trump’s pick for the Seventh Circuit, a seat vacant since 2010 — the most extended appellate vacancy in the country.

Why was this seat vacant for years? Because Wisconsin Senator Ron Johnson, a Republican, withheld his blue slip, leaving the seat vacant for the bulk of Obama’s two terms.

But when Baldwin withheld her blue slip from a Trump nomination for the same vacancy, Republicans flipped the script. Instead of honoring the Senate’s tradition regarding blue slips, Senator Chuck Grassley (Judiciary Committee Chairman at the time) scheduled confirmation hearings for Brennan, ignoring Baldwin’s objection. In the end, the Senate confirmed Brennan.

Everybody’s Got a Plan ‘Till You Punch Them in the Mouth

Since RBG’s passing, Democrats have expressed shock and dismay over Republicans being Republicans. It’s time for Democratic leadership to acknowledge that Republicans are just fine with the way things are going. If they need to take both sides of an issue, fine — they don’t care. It’s about power, not policy. Their hypocrisy is part of the game plan.

Democrats, on the other hand, are in a war but do not seem to realize it. It hasn’t dawned on them that Republicans do not care about their ‘deep concerns,’ their speeches, or finger-wagging about norms. As far as Republicans are concerned, the rules only apply to Democrats. And with the election just weeks away, nothing will make them go against Trump.

When Mike Tyson, the former heavyweight champion, was asked by a reporter whether he was worried about Evander Holyfield and his fight plan. Tyson famously replied, “Everybody has a plan until they get punched in the mouth.” Tyson may have lost the Holyfield fight, but his words have a ring of truth.

It’s high time for Democrats to (figuratively, of course) punch Republicans in the mouth. They can do that by winning the White House, flipping the Senate, and holding the House. Then they should give Republicans a taste of their own medicine.

Sometimes that’s all a bully understands.

Then Democrats should add two or three — or a dozen — judges to the Supreme Court. Why not? No rule says nine is the maximum. Heck, the Ninth Circuit Court has twenty-nine judges. And while they’re at it, why not make DC, Puerto Rico, and Guam full-fledged states. Lord knows those remnants of colonization deserve it. Plus, what’s the downside for Democrats? Even if Democrats attempt all those things and fail, I bet Republicans will think twice before making their next power move.

Out of respect.

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Marlon Weems is a writer and storyteller focused on the intersection of politics, the economy, and racial inequality. He spent more than a decade on Wall Street, where he managed several automated trading businesses. He began his writing career as a capital markets subject-matter expert, providing insights on capital markets to global investment banking clients. Most days you can find him writing from his home on a small North Carolina island with his wife, two of his four children, and two cats.

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