LESSONS LEARNED?

On Monday, Amy Coney Barrett was confirmed as the most recent Associate Justice of the Supreme Court thus shifting the ideological balance to 6-3 conservative.

She was confirmed by the Senate on mainly party lines, 52-48. That was the same vote that Associate Justice Clarence Thomas – who ceremonially swore her in at the White House that looked more like a campaign event – was confirmed by in 1991 to replace Thurgood Marshall.

Given the optics of that event at the White House, I am certain that she will be a fair and impartial justice.

No Democrat voted for her. The only Republican to vote against her confirmation was Senator Susan Collins of Maine who is in a highly competitive election in her state and it is possibly a sign of too little, too late for her. It is widely believed that Collins is one of the more moderate members of the Republican Party but she has consistently voted for the Trump agenda and the final straw for Maine will probably be when she voted to acquit Trump in his impeachment trial earlier this year.

From the clips I saw from of her confirmation hearing, it was nothing more than a dog and pony show. It didn’t matter that she was not forthcoming on her views on Roe v. Wade, Griswold v. Connecticut, Lawrence v. Texas, and Obergefell v. Hodges. She had the votes needed to be confirmed as the Republicans and their allies at the Federalist Society learned the lessons of carefully screening their judicial nominees as it was with Kavanaugh two years ago, Harriet Miers in 2005, Thomas in 1991, and Robert Bork and Douglas Ginsburg in 1987.

Those in the LGBTQ and the reproductive rights communities have several reasons to be concerned that the hard-fought battles over their issues that has spanned sixty years could be at best scaled back or even worse overturned.Overturning Obergefell would create all sorts of legal chaos. Would all the same-sex couples who married after that decision still have their marriages recognized or only recognized in certain states as it was before the decision? And that is before you consider things such as property rights, hospital visitation, children, and other legal matters.

One of those scenarios is returning to the pre-Roe era. Abortions did occur over several centuries prior to the January 1973 Supreme Court decision. Roe allowed for women to make their own decisions without having to resort to – if they had the monetary means – traveling to another state for the procedure or resorting to dangerous methods that would result infertility or death.

It is not just those issues, but everything is potentially on the chopping block ranging from education equity, voting rights, environmental protection, whatever remains of campaign finance laws, the rights of the accused, social safety net, and any unforeseen legal matters that may appear down the road. Whatever legislation passed by a Democratic congress and signed by a Democratic president has the potential of being challenged and overturned by the Federalist Society stooges that Senator Mitch McConnell made a priority to pack the judicial branch with instead of passing a bill to provide COVID-19 relief. I am sure that he will get on it once the Senate reconvenes after the 2020 election.

It should not surprise anyone that McConnell’s pledge four years ago of not to fill a Supreme Court seat during an election year until the American people have weighed in was hollow when he did so in 2018 and then again in 2020, both election years.

I hope that the passing of Justice Ruth Bader Ginsburg is an ah-ha moment for Democrats, liberals, progressives, and other aligned with those ideas.

For starters, blowing off and dismissing elections have consequences.

Let’s begin with the obvious election: 2016.

In 2016, Hillary Clinton won the popular vote but lost the electoral college – specifically in the critical battleground states of Michigan, Pennsylvania, and Wisconsin by a total of less than 100,000 votes. There were other factors – the deployment of the Comey letter less within two weeks prior to the election, the difficulty of a party to hold the White House beyond two terms, targeted voter suppression specifically due to the Shelby County decision in 2013, and weaponized social media from foreign actors, and a press thirsty for a horse race.

But let’s look further at the 2016 election.

One pattern that emerged from that election was how the senate and presidential elections aligned with each other. For instance, in Colorado, Clinton carried the state while in the senate race Michael Bennet won re-election. In Wisconsin, Trump won and Ron Johnson was re-elected.

Imagine if Clinton had won the election.

For starters, none of the Trump policies would be enacted. But more than likely she would have had a Democratic Senate that would have confirmed the seat left vacant when Mitch McConnell refused to allow for Obama’s choice for the Supreme Court due to the death of Antoni Scalia four years ago.

So, let’s say, Clinton wins the three states plus Florida and carries the respective senate races in those states. The Senate goes from 52-48 Republican to 51-49 Democrats – assuming that everything goes well with the replacing of Tim Kaine in Virginia due to him becoming vice-president.

So instead of a potential 6-3 Republican-leaning court heading into 2021, it is looking like a possible 5-4 Democratic-leaning majority. And instead of waiting until the next presidential election, Ruth Bader Ginsburg retires in 2017 thus solidifying her seat will be picked by a Democratic president and confirmed by the Democratic senate.

But because enough people weren’t motivated enough to vote due to that Clinton was not inspiring enough, a Trump presidency would not be THAT bad, or whatever excuse people had to not vote for her and a Democratic Senate, here we are.

Let’s rewind back to that moment in 2016 when Antoni Scalia died. Why was McConnell able to pull off that power play of blocking Obama’s appointee of Merrick Garland from receiving a hearing? Because Republicans had a majority in the Senate due to the results of the 2014 elections thus putting McConnell in that position to do so.

In 2014, Republicans flipped 9 seats to gain control of the senate: Alaska, Arkansas, Colorado, Iowa, Louisiana, Montana, North Carolina, South Dakota, and West Virginia.

Of those seats that flipped, four were close. In addition to Colorado and North Carolina, Alaska and Iowa. All of them were part of Obama’s 2008 coattails but when it came time to hold those seats, voters didn’t bother to show up. 2014 had 36.6% national turnout which was the lowest since 1942.

Colorado is certainly regretting letting Trump stooge Cory Gardner be their senator and I’m willing to bet North Carolina feels the same about Thom Tillis based on the polling I’ve seen.

So, let’s say Democrats hold those four seats and the senate is split 50-50. In that scenario, it is the vice-president who determines control of the Senate and in 2014, the vice-president is Joe Biden thus meaning the Democrats retain the senate.

Who knows, maybe instead of filling two seats as he did with Justices Sotomayor in 2009 and Kagan in 2010, Obama gets to fill not just Scalia’s replacement but also RBG’s seat when she retires after Obergefell is decided in 2015 and Obama gets to fill that seat thus ensuring a 5-4 liberal leaning majority as one of the defenses and thorns in the side of a future Republican administration.

But the one election that continues to sting is November 2010, the one where not only did Republicans flip the House but also won several governorships and state legislative chambers to where they controlled the redistricting process and ensured that it would take a massively large Democratic wave to flip the chamber as what happened in 2018.

In that election, Republicans flipped 6 seats: most notably Illinois, Pennsylvania, and Wisconsin. Also. some of the notable holds for them was Florida, Iowa, New Hampshire, North Carolina, and Ohio.

So, imagine a US Senate starting in January 2011 without Ron Johnson, Mark Kirk, Richard Burr, Marco Rubio, Kelly Ayotte, Rob Portman, Pat Toomey. I’m going to throw in Scott Brown from Massachusetts who won a special election in January 2010.

The Democrats maintain their filibuster proof majority so that Mitch McConnell can no longer abuse it and keep all those federal judicial spots for as long as he could until the next Republican administration.

Of course, all of these scenarios I have been talking about occur in a perfect world. Martha Coakley decides to take campaigning seriously in the leadup to the Massachusetts special election in January 2010. Rob Blagojevich doesn’t try to sell the senate seat vacated due to Obama’s 2008 win. The Denver Post in 2014 calls out Gardner for supporting personhood and refuses to endorse him. James Comey doesn’t drop his letter when he did. Democrats do a better job at candidate recruitment and have a better get out the vote operation to push back against the Republican machine to turn out their supporters and suppress Democratic voters.

There is an old adage in American politics and it is usually attributed to Bill Clinton. The quote is “Democrats want to fall in love while Republicans fall in line.” Because Democrats were consistently waiting for the perfect candidate in senate races throughout the 2010s, they ended up ceding control of the Senate and hoping for Republicans to abide by the rules they created only to see them change it when the political pieces were to their advantage.

One day Trump will no longer be president whether that day comes this upcoming January or God forbid four years from now, but the Republican’s judicial branch court packing plan will one of the lingering effects of his time in office.

This was a hard lesson to learn and I really hope that people have learned them because everything is always at stake.