America needs to burn down the Republican court-packing program

America needs to burn down the Republican court-packing program
Photo via Gage Skidmore.

Top Republicans are beginning to genuinely believe the Democratic Party is going to take the House, Senate and presidency in a rout in November's elections. That's the subtext behind a new, coordinated spate of vapor-having over the thought that the next Democratic president might "pack the courts," quote-unquote, filling new roles in the judiciary with qualified, non-arch-conservative jurors in an attempt to at least partially undo Republican efforts to stuff that judiciary with Brett Kavanaughs, Amy Coney Barretts, and anyone else willing to hew to deceased Supreme Court Justice Antonin Scalia's ideological belief that the Founding Fathers "meant" whatever they are required to have "meant" to defend his vote for Whatever Conservatism Wants This Particular Day.

So we're getting television appearances like this, in which Republican Sen. Ben Sasse finds it very, very upsetting that any party other than his own would engage in such alarming "suicide bombing" of gubbermint.

Or at least, that's the plan. The plan was probably not supposed to include Sen. Mitch McConnell, who may or may not be hiding a positive COVID-19 test result himself as he plunges forward on getting one last Supreme Court seat filled, flat-out admitting to and laughing about his role sabotaging the nominations process during the Obama years in order to stuff the judiciary with ideological allies when Republicanism next captured the White House.


Tee-tee. We have such fun, we do, on Fox News.

The Senate's own Grim Reaper is underselling his role, if anything. The Republican Party has worked steadily to "pack" the courts with arch-conservative ideologues for a lot longer than a few years, and adopted, to use Ben Sasse's script, a host of "weirdly Orwellian" faux-beliefs to do it. By President Barack Obama's second term Republicans allied themselves around the peculiar notion that merely nominating would-be judges to the courts amounted to "court-packing"—the theory being, in the Republican mind, that any Democratic president doing roughly anything the Constitution tasks them with doing is inherently illegitimate because it's not a Republican doing it.

Republican Sen. Chuck Grassley, who has been a snake for his entire career, was very insistent in claiming any nomination whatsoever counted as "packing." He was joined by, of course, Sen. Mitch McConnell in his protestations, as well as many others.

It's garbage. It's always garbage, every time, insincere and malevolent and gross. It is the reason the party slid so easily into idolatry and fascism: The combination of weaponized dishonesty with the blunt dismissal of the legitimacy of opponents to govern, even if elected by the public to do so. It's also the reason Donald Trump can commit crimes in office and count on Mitch McConnell and his party to immunize him from consequences. When the rules are "anything your side does counts as a crime, and anything my side does counts as patriotism," thuggery will inevitably follow.

The notion that Democrats were not allowed to fill any vacancies was not a McConnell invention. It was the height of conservative intellectualism, or what was left of it, to assert the new ascendency of one-party rule.

After Scalia's death and the Republican refusal to confirm any Obama-nominated replacement, qualified or not, McConnell and likeminded party authoritarians vowed that they would hold the seat open for "four years" if necessary, that is if Democratic candidate Hillary Clinton won, and that for that matter the Supreme Court didn't need nine justices at all, so there. And yes, the notion of indefinitely blocking Democratic judicial appointees, for as many years as necessary until Republicans could re-seize power, was supported by Republican senators from Ted Cruz to John McCain.

We've been here before. We've never much left this point, in fact; Republicans may have now slid into abject Dear Leaderism, but Trump's stubby-fingered notion that him breaking previous norms and rules is Legitimate while Democratic moves are relentlessly cast as either outrageous or "criminal" is how conservatism has operated for two decades. This is it. This is why their base fell so readily into the authoritarian mantras: It was Mitch McConnell's mantra long before Trump ever took up the chant.

The difference now is that Donald Trump is too brickheaded to perform the routine with even a little grace, far more comfortable with the rhetoric of overt authoritarianism than pussyfooting around on the edges, and so the full implications are on display for all to see. Long-held Republican ideologies are now being displayed in the nude, and it's not a pretty sight.

The current extremely coordinated tag-team fainting couch routines are, in other words, bullshit. We've seen that the primary rule of Republicanism is that only rules that benefit Republicanism apply. We've seen, over and over, longstanding norms be toppled and split into firewood when necessary, and whenever necessary. The Republican "president" is making millions in cash from supplicants using his businesses as the bases from which they can ask—and get—government favors. The Republican "president" is doing Not A Goddamn Thing to stifle a nationwide pandemic, in part because the Team of Elite Conservative Incompetents came to an early conclusion that the deaths would happen mostly in Democratic states. McConnell has been declaring the Senate to have new rules whenever it suits him—but by God, if Democrats take over it would be scandalous to press further.

It's bullshit. The party was willing to turn itself into an organized crime ring, if that is what it took to prop up embed often-unqualified archconservatives into roles throughout government. It can bleat all it wants about efforts to undo the damage, but it remains insincere.

Presuming Democrats ever win elections again, and that Trump's Republican allies resist the temptation to declare democracy in the United States dead and invalid rather than transfer power back to authorities who might not look the other way when it comes to widespread, maudlin corruption, there will be a host of efforts required to patch the nation's government back into something resembling working, non-crooked order. It will require—require, flat-out—prosecutions of officials who broke U.S. laws. It will require reestablishing neutrality of the judiciary, rather than abandoning it as permanent fixture of would-be authoritarian rule.

That may require expanding some courts. It may require investigations of nominees who sailed through the McConnell-led system with covered-up records.

Fascism is not something that can simply be worked around, in trying to govern. It is a wholly illegitimate form of government. It cannot coexist with democracy. It must be purged. When it comes down to repairing our systems, any judge willing to work with the absurdly crooked Donald Trump to further their own careers seems definitionally, to me, unqualified for their office, but impeaching the whole damn lot of them is not likely to be something our still-divided government could do.

Hosing down the Republican effort to corrupt the judiciary, however—turning the grand fortress of conservative obstruction into a soggy cardboard mess—is a decent compromise position. It may literally be the most "moderate" possible response.

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