Pressing his ears against the commentariat’s din, Matthew Yglesias comes to obvious conclusions: only a Democratic majority in the Senate could have stopped the Brett Kavanaugh confirmation. Conversely, Mitch McConnell’s legislative genius, such as it is, consisted in whipping a bare majority. Even in those halcyon days of the sixty-vote filibuster over which Harry Reid presided, Barack Obama got nominees Sonia Sotomayor and Elena Kagan confirmed not because a spirit of benign comity persuaded Susan Collins and Lindsey Graham to vote for them: the Senate confirmed them because he still enjoyed a fifty-plus Democratic majority that could’ve gummed up the works if it wanted to. Reid and Obama didn’t need Collins and Graham.
Yglesias reminds us of the 111th Congress’ legislative achievements, which are prodigious compared to the machinations of the lobbyists-in-waiting and sociopaths who warm the seats on Capitol Hill:
Separate legislation completely overhauled federal financial regulation. They passed the American Recovery and Reinvestment Act (“the stimulus”), plus a couple of extra smaller stimulus bills and then a couple more during the lame-duck period. They repealed “don’t ask, don’t tell,” ratified a landmark arms control treaty, passed federal hate crimes legislation, and reformed and expanded the federal school lunch program.
Congress for the first time allowed the Food and Drug Administration to regulate tobacco products, forced new disclosure on credit card companies, established a small national public service initiative, passed the biggest public lands bill in generations, expanded the Children’s Health Insurance Program, made it easier for plaintiffs to pursue pay discrimination claims, and even passed some kind of shark conservation law.
Don’t forget timing too.
Had Scalia died during the six-year period when Harry Reid was majority leader, Obama would have appointed his successor, and we would add “created the first progressive majority on the Supreme Court since the 1960s” to his résumé. Had Scalia lived through the 2016 election, he would have retired with Trump in office, and the process of replacing him with Neil Gorsuch would have been a normal SCOTUS succession rather than a Mitch McConnell masterstroke.
Meanwhile, in a deep sense, the foundation stone of the conservative movement’s grip on the Supreme Court is that poor health forced Thurgood Marshall to resign in October 1991, allowing H.W. Bush to replace him with Clarence Thomas. Had Marshall’s health held up for another year, he would’ve retired right around Election Day 1992 and Senate Democrats surely would have held the seat open for Bill Clinton to fill in 1993.
To stop Donald Trump from nominating justices and lower court judges, and to stop McConnell from blessing them with his censer, Democrats must win back the Senate.