The Democrats had nowhere to turn when Ruth Bader Ginsburg’s passing gave Republicans the gift of a generation. This week the US Senate officially appointed Amy Coney Barrett as the latest associate justice to the US Supreme Court. The ram-job confirmation cements a 6-3 conservative majority and may last for a generation. To many in the GOP, the death of Ginsburg was the ultimate prize for a party that has remained ruthlessly steadfast in its tactics for decades. In a gesture to signal her displeasure in the nomination, Speaker Pelosi claimed that the House of Representatives would use “every arrow in our quiver” to ultimately block Barrett’s ascension to the court. However, now that the nomination has succeeded, it is clear that no such arrow was ever used.
Now after the Merrick Garland coup in 2020, the Democrats hoped Republicans would honor their word. Republicans have shown time and time again, that rules and norms directly threaten their anti-democratic strategy. The House of Representatives has little formal powers regarding Supreme Court confirmations, however the majority the Democrats hold in the House combined with their necessity to pass needed Coronavirus aid packages put them in a good negotiation position. In addition to informal power, Pelosi could affect the packed Senate calendar by pushing forward a privileged impeachment resolution. She did neither.
Many in Congress and in academia believe that this is part of a pattern of manipulation by Republicans that require a drastic change in strategy. During Barret’s Senate hearing, Senator Sheldon Whitehouse (D-RI) exposed the intricate scheme orchestrated by conservative think tanks to bring about this watershed judicial moment and urged Americans to “look for power in the shadows.” The speech was one of the few times a Democrat brought substantive firepower into the confirmation process and contrasts starkly with the House Leader’s lack of action.
One way to best combat this anti-democratic strategy is for Pelosi to use her democratic strength, argues Rick Hasen, Chancellor’s Professor of Law and Political Science at UC Irvine, who believes Congress could enact more robust voter protection laws to curb the power of the court. Furthermore, Larry Lessig, Harvard law professor and former 2016 presidential candidate, pleads for the Democrats to use this moment as a moment of clarity and reverse the trends that have been continuing since 2010 when the Democrats held both houses.
Despite the rhetoric, the Democrats failed to shoot a single arrow before it was too late. And now the only quiver Pelosi and her colleagues have is a quiver at the thought of a conservative Supreme Court majority. The Democrats will need a hard reset on long term policy in order to push back.