Ian Reifowitz

Here's how Biden can win back Obama-Trump voters: analysis

With the election barely a week away—and the fate of our democracy hanging in the balance—it's time for closing arguments. Turning out the base is vitally important, and it's right that most progressive attention is focused there. But I would like to take a different tack, and make sure we collectively leave no stone unturned.

Although there are relatively few undecided voters, the ones who voted for President Obama and then for Trump—and, in some cases, for Democrats in the 2018 midterms—are numerous enough to make a difference in close states that could swing the election: Michigan, Pennsylvania, and Wisconsin.

It's tempting to say: Who needs them? The answer? Joe Biden. I want to reach out to Obama-Trump voters and convince them to vote for the Biden-Harris ticket, as well as Democrats straight down the line.

Of course, COVID-19 and Trump's general unfitness are of primary importance for every type of voter, and Biden has to lead with those topics overall. Nevertheless, there are other issues and themes that Democrats must emphasize as well when targeting these voters specifically.

We know quite a bit about Obama-Trump voters thanks to survey data, which I summarized in my recent book. Most of them "expressed high levels of anger toward non-whites and foreigners," even though they voted to elect the first African American president. This might seem counterintuitive, yet the data shows, for example, that a quarter of the white voters who disapproved of interracial couples nonetheless cast a ballot twice for Obama—whose own parents were an interracial couple.

Reaching out to Obama-Trump voters does not in any way mean accepting or, even worse, playing to any kind of racial resentment. Barack Obama never did that. Doing so would represent a clear violation of our most fundamental progressive values. Nevertheless, we can and should try to win votes where we can while always remaining true to those values. We can do what Obama did so well, namely get those voters to prioritize interests other than their perceived racial grievances. That's the opposite of what race-baiting demagogues like Trump do.

For example, we know that a decent chunk of Obama voters overall "expressed varying degrees of white racial resentment while also overwhelmingly embracing liberal positions on issues such as taxation and the existence of climate change." These are the Obama-Trump voters who are most likely to choose Joe Biden.

Likewise, the Obama-Trump-2018 Democratic voters held strongly progressive positions on health care, the environment, and gun control. However, they took a somewhat less progressive stance on immigration—although a majority nonetheless supported DACA, and there was little daylight on that issue between them and the Obama-Trump voters who went Republican in 2018—and were less progressive still on a border, as well as race and gender issues.

On a related note, the graph below also shows those who voted for Obama in 2012, then sat out 2016, before coming back to the Democrats in 2018. Compared to Obama-Trump-2018 Democrats, those voters look more like the Democratic base, i.e., those who voted for Obama and Hillary Clinton, in particular on health care and the environment. It's worth noting that support for two economic issues garnered almost universal support among all three groups: raising the minimum wage to $12 an hour (it doesn't appear they asked about a higher level) and raising taxes on millionaires. Those two issues don't appear in the graph, but were discussed in the article from which it came.

Voters who voted for Obama in 2012, then Trump in 2016.

To be sure, Biden has been talking about health care, the minimum wage, millionaire's taxes, and climate. Now is the time for him to powerfully hammer home the differences on these vital issues between him and the Man Who Lost The Popular Vote. The large numbers of early voters, especially among Democrats, actually makes such an approach even more strategically valuable now than even a couple of weeks ago.

To any undecided Obama-Trump voters reading this, I'll say the following: Vice President Biden and Sen. Harris will enact economic policies to help the bottom line of middle- and working-class voters who are doing everything they can to make ends meet. The Democrats will make the wealthiest—the richest of whom have increased their net worth by an obscene amount during the pandemic—pay their fair share. Furthermore, a Biden White House will raise the minimum wage so that a full-time job pays a living wage.

Trump's policies, on the other hand, pad the bottom line of millionaires and billionaires, and do little to nothing for the vast majority of Americans. Because he doesn't want you to be thinking about that fact when you cast your ballot, he constantly spews lies aimed at scaring you about Black and brown people.

The Democrats will build on Obamacare, making it more affordable and accessible. The Republicans want to destroy it and return us to the days when having a preexisting condition—like, for example lung damage caused by COVID-19—makes it practically impossible to get health coverage. Joe Biden will fight to protect our environment, to keep it clean, safe, healthy and, in a word, livable—creating huge numbers of jobs in the green industries of the future in the meantime, while also taking care of workers during the transition. The Orange Julius Caesar stands instead with polluters who don't care that their actions harm the health of the American people, not to mention their own employees. Big picture: Trump and the Republicans will fight only for those at the top, while Biden and the Democrats will fight for every American. That's why you should vote Democratic.

In reaching out to these Obama-Trump voters, Biden cannot ignore racism—either its prevalence in our society, in Trump's policies, or in his rhetoric—when appealing to Obama-Trump or other undecided/persuadable voters who may not be, despite our fondest wishes, across-the-board progressives. In fact, those voters need to hear how race intersects with economics, in particular when it comes to Trump's campaign message, because explaining that will only further convince them to vote Democratic.

Prof. Ian Haney López has explored this issue in depth. His research—which included extensive surveys designed to test various messages—is laid out in his recent book Merge Left: Fusing Race and Class, Winning Elections, and Saving America. The book makes clear exactly what is the most effective way to talk about race and economic issues. Since its publication, López has continued his work, creating a whole array of material as part of his Race-Class Academy, which seeks to explain "how together we can beat dog whistle politics by building cross-racial and cross-class solidarity." Here's the guts of his message:

Certain politicians exploit racist rhetoric to divide and distract, while they rig government and the economy for themselves and their big money donors. They get richer, we get poorer—and the power of government is turned against communities of color.

But we can fight back and win. Here's the most powerful movement-building message today:

When we come together to reject racism as a weapon of the rich, we can make sure that the government works for all of us, of every race and color.

A team led by López put together a series of 12 short videos that present the race-class message. The videos were created recently enough to incorporate COVID-19 and its effects. The first set examines how the economic elites use racism as a class weapon. The next set demonstrates how more limited, standard progressive messages—such as the race-blind, class-only approach, and the class-blind, "call out racism" approach—are not the most effective ways to gain widespread support for progressive candidates and policies. The third set explains in depth the race-class message itself. The final video argues that we now have the best opportunity in our history to create a sustained cross-racial alliance of voters—what López calls "race-class solidarity"—to not only defeat Trump and the economic elites he serves, but to create lasting change and achieve both racial and economic justice. The videos all together take 25 minutes, and I encourage you to watch them all.

Race-Class Academy 1.1 - Dog whistle politics youtu.be

López tested the race-class message against the other progressive messages mentioned above, as well as the racial fear message used by those, like Trump, who practice dog whistle politics. The race-class message proved to be the most appealing one not only to whites, but to Latino and Black voters as well. Most recently, in a New York Times op-ed that focused on how to win over Latino voters, Prof. López argued:

As Mr. Biden makes his own pitch, he should see Hispanics not as a monolith but as America in microcosm. Some Latinos view themselves as whites, others as people of color, and still others minimize the importance of race in their lives. Typically, this diversity among Hispanics — and in the multiracial Democratic coalition more generally — is seen as a major challenge for Democratic strategists. But our research suggests there's a way to build common cause that speaks persuasively across the spectrum of class and race. By pointing to Mr. Trump's strategic efforts to stoke division, Mr. Biden can better make the case that our best future depends upon joining together.

As for Biden making the case, just about a month ago, in Manitowoc, Wisconsin, he specifically addressed Obama-Trump voters. He acknowledged that "an awful lot of people in this county" voted for the Obama-Biden ticket and then voted for Trump in 2016. Biden continued: "I know many of you were frustrated. You were angry. You believed you weren't being seen, represented or heard. I get it. It has to change. And I promise you this, it will change with me. You will be seen, heard and respected by me. This campaign isn't about just winning votes, it's about restoring the basic dignity in this country that every worker deserves."

Elsewhere in the speech, Biden contrasted his support for raising the federal minimum wage to $15 an hour, as well as his plans on taxing the rich, health care, and more, with those of Trump: "Trump's tax cut for the wealthy is going to cost billions of dollars a year and whose hide does it come out? It comes out of your hide. The simple truth is that Donald Trump ran for office saying he would represent the forgotten man and women in this country. And then once he got in office, he forgot us. Not only did he forget them, the truth is that he never really respected us very much."

These are powerful words, and important sentiments. Biden and Democrats need to keep on emphasizing their stark differences from Trump and the Republicans on these kinds of bread-and-butter economic and public health issues in order to identify exactly whom each candidate and party truly cares about. This is, as the former vice president has stated repeatedly, a campaign where one side represents Scranton and the other Park Avenue. Biden must also highlight how Trump and his ilk use racist dog whistles to divide middle- and working-class voters along racial lines—and distract them from the reality that his real interest is helping those at the very top.

That's how we bring those Obama-Trump voters and other undecideds—as well as the Latino voters whom we need to win overwhelmingly—into the Democratic column, and bring an end to the most destructive presidency in our country's history.

Ian Reifowitz is the author of The Tribalization of Politics: How Rush Limbaugh's Race-Baiting Rhetoric on the Obama Presidency Paved the Way for Trump (Foreword by Markos Moulitsas)

Sexist Tomi Lahren tweet about masks perfectly illustrates why Biden is crushing Trump among women

Female voters really don't like the impeached president. According to CNN, the five most recently conducted live interview polls found Joe Biden leading Trump among women by an average of a whopping 25 points—with the gap sitting at an even whoppinger 34 points in CNN's own poll. If that trend holds, we're talking about double the recent margins among women achieved by Hillary Clinton against Trump four years ago (12 points), as well as those of President Obama in 2008 (13 points), and 2012 (11 points).

There are more reasons for Biden's spectacular edge among female voters than there are tubes of self-tanner in the Orange Julius Caesar's bathroom. But two of them—misogyny and his utterly anti-scientific response to COVID-19—are intimately intertwined. These delusions came together recently in a single tweet from one of his minions.

As this tweet makes abundantly clear, in the deluded mindset of Trumpworld's denizens, wearing a mask is: a) a sign of weakness, and b) a sign of, somehow, being a woman—which is itself seen, by them, as equivalent to weakness. If that sounds absurd to you, it's a pretty solid indication that you are: a) not deluded, and b) neither Trump nor one of his minions.

Tomi Lahren may not be valuable enough to the cause to merit two hours of The Man Who Lost The Popular Vote's time—not to mention the Medal of Freedom to boot. Still, she has 1.7 million Twitter followers, was dubbed a "rising media star" by the New York Times, and hosts a show on Fox Nation. In this single tweet, she managed to encapsulate the stupidity, misogyny, and hatefulness of Donald Trump.

She also makes crystal clear why women voters are overwhelmingly supporting Joe Biden.

Ian Reifowitz is the author of The Tribalization of Politics: How Rush Limbaugh's Race-Baiting Rhetoric on the Obama Presidency Paved the Way for Trump (Foreword by Markos Moulitsas)

Here are 2 key elements Biden needs to highlight from the Trump tax bombshell

The first presidential debate is sure to be a bananarama full of bonkers. As anyone who has been watching the current presidency already knows, Joe Biden will have to deal with a torrent of lies and personal attacks from The Man Who Lost the Popular Vote—often packaged together in the same word salad jumble of an answer.

But one thing we didn't know—until about 48 hours ago—was that the entirety of Trump's decades-long tax scam, as well as his utter failure as a businessman, would be laid out in The New York Times. As Daily Kos founder Markos Moulitsas wrote, "it's worse than anyone could've imagined." Worse for Trump, but perhaps better for the American people … if it helps sink him further in the polls.

In terms of the debate, there's one effective way for Biden to talk about this issue.

The key is for the former vice president to boil down the whole sordid story into two central elements, each of which connects to one powerful emotion Biden wants evoke in voters. The first targeted emotion should be anger. Biden should emphasize—as he's already done in ads—the injustice of Trump living a life of luxury while getting away with paying little to nothing in income taxes. This should be a straightforward, relatively simple thing for Biden—who grew up in modest circumstances himself—to accomplish.

The second element connects to voters' fear. Trump owes what finance experts soberly refer to as a shit ton of money, and most of it will come due in a would-be second presidential term. Having a president who is that compromised should scare the bejeezus out of every American, as Paul Krugman explained.

Personal financial trouble has always been a red flag when it comes to filling sensitive government positions, because it's an open invitation to corruption.

So the confirmation that the nation's chief law enforcement and national security official — whose business empire already offers many opportunities for undue influence — is drowning in debt is chilling.

[...] So now we have a deeply indebted business owner with every incentive to engage in malfeasance — except that in addition to running his business, he's running the United States of America.

To be clear, Biden should not have to carry the ball by himself tonight on Trump's tax shenanigans. This is a topic of vital importance, and no matter what else moderator Chris Wallace had planned to focus on, he needs to address it.

After Wallace (hopefully) brings up that question, and Trump offers whatever flailing response he can muster, Biden will have his chance.

There are very few undecided voters at this point in any campaign. That's especially true when one candidate is a sitting president, and it appears to be even more true this time than usual. Frankly, the most effective way to motivate undecided voters is to either to piss them off or to scare the shit out of them.

Biden needs to seize the opportunity provided by the latest bombshell about Trump's tax scam, and do both.

Trump rarely mentions his one major accomplishment -- because people don't like it

Remember the GOP Tax Scam? Have you noticed that neither Donald Trump, nor any the Republicans who voted for it, are out on the campaign trail touting the single major piece of legislation that resulted from their party's two-year trifecta—when Republicans held the presidency alongside majorities in both houses of Congress? That says everything about how they operate. Their entire politics are bait-and-switch.

The bait, especially with Trump—although he's far from the first Republican to follow this blueprint—is screaming about Black and brown people. The switch is what they actually spend their political capital on. In Trump's case, it was the Rich Man's Tax Cut of 2017. As the latest data—analyzed by David Cay Johnston—demonstrates, that tax scheme overwhelmingly benefited the people who needed the least help.

Shocking, I know.

Johnston laid out the information in great detail, but here are the guts of it: "The Trump/Republican tax savings were highly concentrated up the income ladder with hardly any tax savings going to the working poor and only a smidgen to the middle class." Gee, no wonder Trump isn't crowing about that tax cut at his rallies.

As for the pre-COVID-19 economy under Trump, more broadly? Again, the record is not a good one.

The first data showing how all Americans are faring under Donald Trump reveal the poor and working classes sinking slightly, the middle class treading water, the upper-middle class growing and the richest, well, luxuriating in rising rivers of greenbacks….More than half of Americans had to make ends meet in 2018 on less money than in 2016, my analysis of new income and tax data shows.

Johnston found that households earning less than $50,000 saw their overall incomes drop by an average of $307 per household between 2016—the last year of President Obama's second term—and 2018—the first full year the Trump Rich Man's Tax Cut was in effect. That's just under 87 million Americans. I loved Johnston's plain-spoken summary of the situation: "That 57% of American households were better off under Obama contradicts Trump's often-repeated claim he created the best economy ever until the pandemic."

So The Man Who Lost The Popular Vote's big fat cat tax cut did nothing for the middle or working classes. What did Trump do in that case? Promise to pass one that will, of course. In January, he assured us we'd have the details in 90 days. "We're talking a fairly substantial ... middle-class tax cut," said the Orange Julius Caesar. In February, the White House talked about a "Tax Cut 2.0," and Treasury Secretary Larry Kudlow mused about how "we'd love to have a 10% middle-class tax cut."

When might we see it? Will they stick to the target date of 90 days? Not so much, according to Kudlow: "It will come out sometime in September." Well, folks, September is almost over.

Whatever you can say about Trump, he's a good enough marketer to know you can't sell a loser. And his 2017 tax scheme is one. The most recent polling we have on it comes from the spring of 2019, and it's not pretty.


Gallup did its own poll, and reviewed some other contemporaneous, high-quality surveys. Here's what they had to say at the end of April 2019:

The 2017 Tax Cuts and Jobs Act (TCJA) is not turning out like President Donald Trump and the Republicans hoped it would -- at least, based on the public opinion data we have to date. Americans remain more likely to disapprove than approve of the law, with 40% approval and 49% disapproval in Gallup's latest update. Other recent polls confirm that the tax reform law is viewed more negatively than positively -- including surveys conducted by the Pew Research Center (36% approve/49% disapprove), Monmouth University (34% approve/43% disapprove), and Economist/YouGov (34% support/40% oppose).

Even though they rarely, if ever, tell the truth about it on the campaign trail, the one thing you can always count on Republicans doing when they get their hands on power is sending more and more money up the economic ladder, through changes to the tax code. That's what they did under Ronald Reagan—when he had a Republican Senate and effective control of the House, thanks to conservative "Boll Weevil" Democrats siding with the GOP. They did it again under George W. Bush, and once again under Trump. And Since Republicans can't actually run on their record of passing tax cuts for the rich, they come up with other "wedge" issues.

Trump is doing exactly that with his own special brand of turbo-charged race-baiting. Let's help Joe Biden and Kamala Harris, as well as Democrats all over the country, make sure the American people have the facts about who is really on their side.

Voting alone is not enough. Can you get 10 friends who live in battleground states to commit to vote for Joe Biden? Sign up to become a vote mobilizer with MoveOn's Mobilize to Win campaign, and use your personal network to help fuel a big blue wave of record-breaking turnout.

Ian Reifowitz is the author of The Tribalization of Politics: How Rush Limbaugh's Race-Baiting Rhetoric on the Obama Presidency Paved the Way for Trump (Foreword by Markos Moulitsas)

If Adams and Jefferson can change the number of justices, so can the Democrats

The Supreme Court didn't always have nine justices, and that number is not set in the Constitution. The number of justices has been changed on multiple occasions throughout our nation's history, each time for a similarly partisan reason—namely to give one party more influence over the court's membership. And the first back and forth over the number of justices was a struggle between two of our most prominent Founding Father presidents.

Let me lay out a scenario: On Election Day, let's say the American people defeat an incumbent president, and give control over both houses of Congress to the party of the president-elect. In a lame-duck act that completely contradicts the very recently expressed will of the people, the incumbent's party then takes action clearly designed to limit the incoming president's ability to shape the Supreme Court going forward. Shortly after inauguration, the new president and his party take steps to reverse that action, steps that include changing the number of seats on the Supreme Court.

This may seem like a prediction of what might happen in the coming months, but what I've just described happened over two centuries ago.

A mere 19 days before the end of his presidency, John Adams signed into law the Judiciary Act of 1801, which reduced the number of Supreme Court seats from six to five—by mandating that the next vacancy go unfilled—and also created 16 new circuit court judgeships. These became known as the "midnight judges" because, as the legend goes, President Adams was processing and signing off on the appointments of these new judges all through his last night in the White House. Then, with his signature not yet dry on the parchment, he decided to make like a tree and got out of there.

An outraged Thomas Jefferson took office and set out to undo what Adams had done. The new Democratic-Republican majorities in Congress sent a bill to the new president's desk that repealed his Federalist predecessor's last-ditch attempt to control the future of the judiciary. Thus, Jefferson changed the number of seats on the Supreme Court back to six, and undid the creation of the new Adams judgeships. As well he should have.

This historical example reminds us that changing the number of seats on the Supreme Court requires only a simple act of Congress. In fact, that number was changed on five other occasions as well. As for why, political scientist J.R. Saylor wrote in the Baylor Law Review that the party in power enacted each of these changes in order to either "purge the Court of … justices making decisions objectionable to an incumbent of the White House or to a dominant party majority in Congress," or to "'pack' the Court in order that the policies of the government in power would be upheld as constitutional."

In an echo of our current situation, the most recent of these changes involved a reactionary president who went against the expressed will of the people. Southern white supremacist Democrat Andrew Johnson, an accidental president if ever there was one, had the opportunity to fill a Supreme Court vacancy in 1866, but the Republican Congress—the liberals of the day on racial issues—eliminated the open seat through legislation. Johnson was unable to fill the seat before leaving office. In 1869, after Republican Ulysses S. Grant—the pro-Reconstruction president whose administration destroyed the existing Ku Klux Klan—took office, his Republican allies added back the ninth seat in the name of democracy.

The 800-pound gorilla when it comes to the history of adding seats to the Supreme Court? Franklin Delano Roosevelt and his famous "court-packing" scheme, which, on the face of it, ended in failure when Congress rejected it. However, Roosevelt achieved his goal anyway, because Justice Owen Roberts—in the "switch in time that saved nine" (color me impressed if you know the source of that cliche)—changed his position on the constitutionality of New Deal economic legislation, including laws setting a minimum wage and the National Labor Relations Act. The switch, as law professor John Q. Barrett notes, "took the air out of the Court-packing balloon." Ultimately, FDR's threat of adding seats to the court rendered the action itself unnecessary.

That brings us to today, and the open seat on the Supreme Court held, until last week, by one of the most impressive people in American history, Ruth Bader Ginsburg. As a lawyer, she convinced SCOTUS that gender discrimination was unconstitutional before, some years later, joining the nation's highest court and continuing her fight for equality. Of course, the question of how and when to fill the seat held by Justice Ginsburg is directly connected to how and when the seat held by Justice Antonin Scalia was filled only a few years ago. For your reading pleasure, I'll give you the recap from Daily Kos' own Hunter.

When [Scalia] died in February of 2016, Senate Republicans discovered a heretofore unidentified, now-infamous caveat to President Barack Obama's constitutional powers: Black presidents aren't allowed to fill vacant Supreme Court seats during an election year. The Senate refused to even consider the nomination of Merrick Garland, who was put forward by Obama for the role; instead, the seat was simply left vacant for the duration of Obama's term. When Republican Trump was installed as president the next year, the Senate swiftly confirmed his own conservative nominee.

That nominee was Neil Gorsuch, and his seat is the one that was stolen. What Sen. Mitch McConnell did was the unjust act that broke the system. By comparison, a Democratic Senate confirmed Anthony Kennedy to the Supreme Court in February 1988, less than a year before Ronald Reagan's second term ended.

Yes, that Senate had previously rejected Reagan's first nominee, Robert Bork. Even now, supposedly reasonable Republican pundits like Ross Douthat and Bret Stephens still wrongly point to Bork's rejection as the event that kicked off the current back and forth on court nominations. They seem to forget that the Senate has said "no" to multiple other nominees, including two who were rejected in both 1969 and 1970 because of their ideologically extreme views—the same reason Bork was not approved. In Kennedy, Reagan still got a justice confirmed by a Senate controlled by the opposing party less than a year before a presidential election.

No, the clear act that crossed the Rubicon occurred in 2016. Never before had the party that controlled the Senate simply ignored a nomination made by a sitting president from the other party, and then held the seat open until they had won the presidency and could fill it themselves. People throw around the word "unprecedented," but it has a real meaning: something that has never been done before. It's also worth noting that the word "precedent" (Roe v. Wade is one that's in serious jeopardy right now) has great significance when we are talking about the Supreme Court.

McConnell's unprecedented actions created the McConnell Rule; Moscow Mitch claimed he was following a nonprecedent that he called the "Biden Rule," which was really just a 1992 speech then-Sen. Joe Biden gave on the Senate floor. While Biden did encourage then-President George H.W. Bush to wait to put forward a SCOTUS nominee until after that year's election, it was a speech about a hypothetical seat, and little more. Furthermore, Biden stated he had no problem with Bush nominating someone after Election Day if that hypothetical opening became a reality, and added that "action" on that nomination could proceed at that point.

For McConnell to claim Biden's speech justified his refusal to hold hearings for Garland was, in a nutshell, a flat-out lie. What McConnell did in 2016 did bears no resemblance to the remarks made by Biden in 1992—who was only one senator, by the way, and not even his party's leader at the time.

And now, in 2020, McConnell is changing the McConnell rule—completely violating it, actually. He blathered something about how this time really is different from 2016. According to McConnell's twisted logic, via the 2018 midterms, the American people chose Republicans to pick justices over the next two years. Never mind that only one-third of Senate seats were up for grabs—including only nine held by Republicans, compared to 26 seats held by members of the Democratic caucus, many running in states Trump had won two years earlier. I'll let Montana Sen. Jon Tester—a Democrat who won in one of those red states in 2018—respond: "They won a mandate in 2018? They lost the frickin' House. They're making excuses for something that they know is totally corrupt." The American people agree.

One of the more brilliant pieces I've seen recently comes from Stuart Thompson at The New York Times. He published an op-ed this week constructed entirely of statements that Republican senators made in 2016 to justify not considering the nomination of Merrick Garland. I'll share just a few.

Here's Texas Senator Ted Cruz: "For 80 years it has been the practice that the Senate has not confirmed any nomination made during an election year, and we shouldn't make an exception now." And Mitchy McTurtle himself: "The American people are perfectly capable of having their say on this issue, so let's give them a voice. Let's let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be." Finally, here's Iowa's Joni Ernst—conveniently up for reelection this year, and locked in a race that looks very much like a toss-up: "And if the decision is made that we have a Democratic president, that's a decision we will live with."

And then there's Lindsey Graham.


"I want you to use my words against me. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let's let the next president, whoever it might be, make that nomination." pic.twitter.com/quD1K5j9pz
— Vanita Gupta (@vanitaguptaCR) September 19, 2020

As for Mitt Romney, he may not be a hypocrite on this matter, having not been a senator in 2016, but he's definitely a coward.

Are the actions taken by Trump, McConnell, and their Republican Senate lackeys within the rules laid out by the Constitution? Yes, they are. Nevertheless, this kind of rank hypocrisy—of Republicans doing one thing when it gives them more power, and then doing literally the opposite thing when that would give them even more power—represents an abuse that cannot go unaddressed in a healthy democracy.

Starting with the election of 2000, and including most of our national elections since then, the Republicans have been the minority party as Democrats have consistently won more popular support. Yet, because of the vagaries of the electoral college, the overrepresentation of rural and white voters in our Senate (Americans of color are more disproportionately underrepresented now than at any point since 1870), and the extreme gerrymandering opportunity seized upon by Republicans after they did well in a lower-turnout midterm election in 2010, the GOP has continued to enjoy a degree of power that far exceeds the level of support they earned from American voters.

If The Man Who Lost The Popular Vote fills the seat that belonged to Justice Ginsburg, there will be five conservative judges on our highest court, all appointed by men who became president after getting fewer votes than their Democratic opponents. That's enough by itself to provide a majority decision on any case brought before the Court. Them's the rules, as they say. Trump himself justified his plans along similarly thoughtful lines.


"When you have the votes, you can sort of do what you want," Trump tells Fox of comparisons to Obama/Garland.
— Alex Seitz-Wald (@aseitzwald) September 21, 2020

There is a point, however, at which the rule of a numerical minority over the majority becomes incompatible with democracy. It becomes illegitimate. Although that's reason enough to act, if Democrats win the White House and Senate and add seats to the Supreme Court, they will merely be doing the same thing Republicans did: playing by the rules and exercising the power the Constitution provides them. After all, when you have the votes, you can sort of do what you want. Looking at it another way, at some point, after a bully pushes you around long enough, you're justified in fighting back.


If Trump and McConnell get their way, and Democrats then win big in November, they will have no choice but to stand up for democracy by adding two seats to balance the Supreme Court. Even this would not fully redress Republican misdeeds—which would require replacing Justice Gorsuch with Merrick Garland as well—but it would be something they could do by eliminating the filibuster and simply enacting legislation. Furthermore, I believe a majority of the American people could be convinced to support such a step, recognizing it as a proportional response. As Paul Waldman argued in The Washington Post, the Democrats can absolutely justify such actions by making "Look what you made us do" their "guiding mantra."

But maybe it doesn't have to come to that. It would be better for our country if it didn't, if the two parties could figure out a better alternative. The best outcome would be to use this opportunity to remember the concept of mutually assured destruction, and engage in disarmament.

If McConnell believes that Biden and the Democrats will win, and would act on expanding the Court—an action that would surely leave Republicans vowing to do the same if they get the opportunity down the road—would he make a deal on a major reform to the way Supreme Court justices are chosen, and how long they serve? Reasonable reform plans have been proposed involving term limits that, for example, would have one justice retire and be replaced every two years. If Republicans don't hold a vote on Trump's nominee before the election, and Democrats win the White House and Senate, Democratic Senate Minority (for now) Leader Chuck Schumer's leverage would only increase.

Such a deal, so long as it included holding off on filling the existing open seat, would be the best outcome. It would provide a way out of the escalating wars between the parties over Supreme Court nominations, wars that would only get worse if that seat were filled by Trump and McConnell's Senate, and Democrats were forced to take appropriate actions in response.

I highly doubt this kind of comprehensive reform will be enacted, largely because Republicans have always operated from one basic principle: What can we do that will give us the most power? And, as I noted Tuesday on France 24, there's really nothing to stop them from moving forward.


Perhaps if Democrats can convince McConnell & Co. that exercising the power they already have before January will cost them more power in the long run, a deal can be struck. Either way, the history lesson from our founders teaches us that the number of Supreme Court justices has, right from the start of our Republic, been subject to change, based on who currently holds the power.

If—and I truly hope for the sake of our system of democracy they do not—Republicans abuse the power they currently hold, and then lose the Senate in November along with the presidency, then Democrats must, in the name of democracy, undo that abuse. In doing so, Democrats would not be setting forth on a radically new path—no matter how loudly hypocrites like McConnell and Lindsey Graham might squeal. Today's Democrats would simply be following the precedent created by their party's founder when he undid a lame-duck attempt to subvert the will of the people.

And they'd be right to do it.

Ian Reifowitz is the author of The Tribalization of Politics: How Rush Limbaugh's Race-Baiting Rhetoric on the Obama Presidency Paved the Way for Trump (Foreword by Markos Moulitsas)

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