After listening to Dahlia Lithwick on 2038 today, I had to write her a note. It’s hard to believe someone so smart and incisive can be so blind to political reality.
I was just listening to you on the new 2038 podcast. Your support of the Democrats reinstating the judicial filibuster is simply magical thinking ignoring the current reality of the Republican Party. The Democrats simply cannot shame them into re-establishing norms.
They already tried to do it once. The Republicans got rid of Blue Slips during the Bush years; Democrats brought them back during Obama’s term; and the Republicans immediately dropped them after Trump was elected. The only thing the Blue Slips did was help McConnell keep spots empty for Trump to appoint more judges.
I have no doubt if the filibuster is brought back, the Republicans will get rid of it again when they control the White House and the Senate. Their behavior over the past two decades has not given any reason to believe otherwise.
The Democrats are stuck in a prisoner’s dilemma and continually compromising doesn’t work when the Republicans refuse to reciprocate. It’s tantamount to conceding defeat. The correct strategy for the current situation is “Tit for Tat”:
It is also a highly effective strategy in game theory for the iterated prisoner’s dilemma. The strategy was first introduced by Anatol Rapoport in Robert Axelrod’s two tournaments, held around 1980. Notably, it was (on both occasions) both the simplest strategy and the most successful in direct competition. -Wikipedia
The Republicans are not going to change course until they face consequences for their actions. McConnell has consistently been the one to escalate norm violations. The reason Reid got rid of the judicial filibuster in the first place was the Republicans were blocking practically any nominee. McConnell was clear about his goals from the moment Obama was sworn in: To make him a one-term president.
There are real dangers to the Democrats escalating as well; it could lead to a death spiral where the Federal Government can only do anything when one party controls Congress and the Presidency. But not escalating makes it certain that the Republican Party will only get more extreme. Don’t you remember how hard Obama and the Democrats worked to get a single Republican vote for the ACA? No compromise would have gotten Collins or any other Republican Senator to join them.
If Ginsberg or Souter don’t make it to 2020 and the Democrats don’t hold the Senate, the median vote will be Thomas. Forget about rolling about civil rights: the Court will be rolling back the New Deal and creating a Neo-Lochner era.
You clearly want to hold on to the idea of the Court as an impartial institution, but that ship has sailed. It died when Merrick Garland was denied even a hearing.
Democrats and the left have to wake up to reality.
I saw this lovely plan after writing the initial note. Republicans don’t care about norms at all anymore—they are ramming through judges with only 19% of the committee actually in Washington!