Democrats cannot win the fight to replace Justice Kennedy. They can only prepare for the next battle.
The Supreme Court has been commandeered by conservatives. They won this fight. Liberals must focus on winning the next one.
The retirement of Justice Anthony Kennedy from the Supreme Court finally brings the 2016 election to fruition. While the consequences of electing a Republican president with Republican majorities in both chambers of Congress were understood clearly at the time, they were hypotheticals for some unspecified time in the future.
That time has arrived.
As President Trump prepares to cement a solid conservative majority on the Supreme Court for the first time in decades, and likely for many years into the future, all of the factions of the American left are asking the same question: How can this be stopped?
Here is the answer: It can't.
While it would be wonderful to learn that some heretofore secret Senate parliamentary trick could be unveiled at the last second to bring about a Hollywood ending, such a thing does not exist. The intellectual and emotional energy of people who oppose Republican rule will be better spent focusing on how to move forward from here. The correct question is not "How can we stop this?" It is "How do we fix it?"
The Democratic Party simply isn't in a position to stop this conservative takeover of the Supreme Court without the filibuster, and even with the filibuster rule in place the Democratic leadership has shown little to no inclination to fight. Furthermore, the Senate Democratic caucus right now includes several members running for re-election in Trump-won states — Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana, and more — who can hardly be counted on for a bare-knuckle fight. Even if Chuck Schumer decided to die on this hill, he'd face defections from the likes of Doug Jones.
What little Senate Democrats can do is delay — not stop — the impending confirmation process. Tony Madonna, professor of political science and expert on arcane Senate rules and procedures, says the party can use "objections to unanimous consent or the two-hour rule, delaying tactics in committee, and possibly a disappearing quorum" to slow the process down, but that none of these tactics amount to a silver bullet. "Obstructing the president's nominee depends on having either the Senate majority or the filibuster," Madonna says, "and right now the Democrats have neither," since the Republican majority eliminated the filibuster for Supreme Court picks during the confirmation process for Neil Gorsuch.
As for Sen. Chris Murphy (D-Conn.) attempting to shame Mitch McConnell into some semblance of consistency by delaying the vote until after the upcoming election (as Republicans did in 2016 with Barack Obama's nomination of Merrick Garland), well …the graveyard of American politics is littered with Democrats who believed that this crop of GOP leaders, and McConnell in particular, can be shamed into anything. The Senate majority leader has demonstrated repeatedly that he will do whatever he can to get what he wants and cares not at all about how dishonest or inconsistent it makes him look. Trusting Mitch McConnell to act in good faith is the first step to being defeated.
All of this leaves Democrats in the unenviable position of being urged by their base to fight the upcoming nomination tooth-and-nail, but with very little power to do anything about it.
Perhaps the best chance the Democrats have, oddly, is the persistent possibility that President Trump will do something stupid enough to turn what should be an easy win into a possible defeat. If he nominates someone in the mold of Gorsuch, confirmation is all but inevitable. However, if he goes off the rails — say, nominating Fox News' Jeanine Pirro or son-in-law Jared Kushner — then he would put Republican senators in an extremely difficult position. But of course, there is little anyone, least of all Senate Democrats, can do to control or influence Trump's decision-making.
Short of such a Trump implosion, liberal hopes to stop this nomination are a pipe dream. Republicans were able to hijack the Supreme Court seat vacated by Antonin Scalia, now held by Gorsuch, only because they held the Senate majority. Democrats are still in the minority. This leaves them all but powerless.
Rather than praying for some miracle parliamentary trick that does not exist, the Democratic Party, from the leadership down to the voters, should instead use this as an opportunity to rebuild. Focus on retaking the majority not simply to undo the damage currently being done, but also to prevent the party from falling into such a rut again.
With the pending threat to abortion rights, legal protections for labor, and voting rights, the obvious path forward for the Democratic Party is to organize, recruit, and fight among the people most directly affected. Talk of bipartisanship and working with Republicans should be banished comprehensively and forever. Old, out-of-touch party leaders should be de-emphasized and leadership roles transitioned to the younger, more diverse generation of Democrats under 50.
Stop talking to women voters about civility. Stop explaining to the working poor why Democrats had to be complicit in more financial deregulation. Stop soft-pedaling on criminal justice reform and institutionalized racism in the endless (and endlessly fruitless) quest to peel conservative whites away from the GOP. Instead, lay out a positive agenda behind leadership that doesn't accept defeat as par for the course and constantly lower expectations.
Commit to widely popular issue positions like basic firearms regulations, no-compromises access to reproductive health care, truly universal health insurance that covers everyone, full stop, and comprehensive top-to-bottom reform of law enforcement, the criminal justice system, the war on drugs, and immigration policy. Since the early 1990s the party has tried repeatedly to straddle middle ground on all of those issues. Look where it has led. There is nothing to lose by trying the opposite tactic and committing fully to a more progressive agenda. Look where Democrats are at the moment — this is losing.
Elections have consequences, and Neil Gorsuch and the upcoming Trump nominee are the most significant consequences of what happened in 2016. Rehashing the Clinton-Sanders debate for the millionth time will accomplish nothing. Only the future matters now.
The Supreme Court has been commandeered by conservative Republicans. They won this fight. Focus on winning the next one.