The Way Out

  • Gutting the 1965 Voting Rights Act, opening the door to the current hailstorm of Republican legislation to “fix voter integrity” by making it harder for people to vote, particularly minority voters and voters in areas with heavy concentrations of Democrats, and installing partisan officials in election management — indeed allowing legislatures to substitute their own “winners” whenever they determine that the voters got it “wrong.” Shelby v. Holder (2016);
  • Joining the Citizens United decision which has opened the floodgates to limitless and anonymous “dark money” campaign spending, reducing much of politics to the constant plea for money by candidates on both sides;
  • Giving state legislatures a completely free hand in gerrymandering congressional districts and state legislative districts so long as the intent was to cheat on behalf of a political party with no overt racial motives. The Rucho opinion (2019) acknowledged that while partisan gerrymandering may be “incompatible with democratic principles”, the federal courts cannot review such allegations. Roberts’ exact words:
  • I have heard serious commentators say that maybe justices Coney Barrett and Roberts won’t play along with the independent state legislature scheme because it would completely subvert democratic federal elections.
  • I heard a respected law professor on NPR say that while Dobbs rescinded constitutional protections for abortion, similarly based rights to marriage choice, contraception, gay and trans rights were probably not going to be rescinded because those cases were decided much more recently than Roe.
  • Many of us spent four years of Trump’s presidency singularly focused on beating him at the polls. Good job, us. But here we still are.
  • Similarly, we’re fixated on the idea that bringing Trump to justice for his criminal behavior will somehow reverse the building threat that his rabid followers, theocrats, white supremacists, Putin apologists, oligarchs, gun lobbyists, complacent Republicans and ineffectual Democrats pose to our democracy.
  • One thing Biden can get done, even with the current 50–50 Senate, is confirming progressive federal judges. Manchin’s vote as a Democrat still counts in this context, and so far, he’s been reliable in supporting Biden’s nominees. Mitch McConnell was laser focused on putting Federalist Society judges on the bench when he had the opportunity. Biden and Schumer need to be equally determined.
  • We need to elect at least a 52-vote Democratic majority Senate in the next cycle to bypass the Sinema-Manchin wall. Notwithstanding the handwringing on the news about inflation and the coming Democratic “rout” in the midterms, prospects of increasing the Democratic majority are good. There are strong chances to flip Republican seats in Pennsylvania, Ohio and Wisconsin and some realistic longer shots in Florida, North Carolina, and Iowa. Make donations where you think it might help, if you can.
  • For decades, the Republican Party has used “right to life” as a huge motivator in getting its base to vote. Democratic messaging about reproductive rights and Republican willingness to force 10-year-old rape victims to give birth should be unrelenting.
  • Also, we need to more broadly emphasize how the Republican Party now says that when it comes to the government sticking its nose into your private business, after Dobbs, you no longer have a constitutional right to privacy. The same people who were selling the idea that Obamacare would enable the federal government to make medical decisions for you, are now comfortable letting mostly-male, highly-gerrymandered state legislatures make life-altering medical decisions for women.
  • The Democratic Party needs to, in JFK’s words, “pass the torch to a new generation.” This needs to begin with new leadership in the next Congress, and must include consideration of asking Biden to retire. While he has governed with dignity and probably as effectively as anyone could have, given the circumstance left him by Trump and weak congressional numbers, his expertise is offset by stubborn nostalgia for collegiality that his Republican peers have long since abandoned. He may think that McConnell is his friend, but Caesar trusted Brutus, too.
  • The Supreme Court needs to be neutralized. We need to be explicit and unapologetic about how we’ll do it. Adding seats to the Court is one possibility, but it is by no means the only one. The Supreme Court’s ability to hear cases is completely dependent on Congress’s grant of jurisdiction. Congress can take away the Court’s right to hear a specific case or a class of cases. It should do so immediately with the North Carolina “independent state legislature” case (Moore v. Harper).
  • Democrats need to acknowledge how badly we’ve been outplayed. Regrettably, we’ve clung too long to the idea of “going high when they go low,” and we’re getting eaten alive. For the time being, until the Republican party or its replacement is something other than a glide path to theocratic authoritarianism, we need to use the rules, just as Republicans always do, to assert (or regain) power, even if it means breaking with norms. The Constitution gives Congress the power to immediately reform the Courts. We need to use that power even if it will piss some people off. We need to be willing to engage in “good trouble.”
  • The filibuster is not part of the Constitution, and we need to get rid of it. We should pass the stalled voting rights acts to get rid of partisan gerrymandering and to restore protections for all voters. We should codify Roe and enact legislation making explicit the Fourth and Fourteenth Amendments implied right to be free from government intrusion into one’s personal privacy. We should pass an assault weapons ban and limit the purchase of firearms to people over 21.

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