January 31, 2022

This week, Justice Breyer announced his impending retirement. Republican Susan Collins says “there is no need to rush” into choosing an appointee. SCOTUS decisions are unlikely to be immediately impacted by a Biden nominee, the argument goes, as Biden will be replacing Breyer with a justice who will still end up at the end of a 6-3 split, and for the time that we seek a replacement, it would just be 6-2. So, that’s the argument for moving slowly.

But, before we look at this question, let’s ask a couple of others: What if... President Biden did nominate a new Supreme Court justice, and we placed that new justice on the bench before the end of February? Would President Biden bear a cost for this decision? What if... instead of asking the political question, we just asked how to do the right thing for our country?

Republicans do not care and do not pay a price

Mitch McConnell can say whatever he wants about the filibuster, about the Supreme Court, about legislation—and then immediately throw it away as soon as he sees the need to do so. The Republican base will never, at any point, call him out for his hypocrisy. They won’t do it, because they believe at their core that this is the cost that must be paid in order to bring their ideas forward. If that requires subverting the process, they are more than willing to do it. So be it.

On the Democratic side, we have a tendency to wring our hands and talk about process and procedure, or fear our own base will have problems with our decisions. Without mountains of data, I will say I firmly believe that the impact of a slow supreme court hearing process will not in any way help the Democratic cause. It only gives Democratic candidates a case to make that President Biden continues to work on fulfilling his promises to place a well-respected woman on the court, to work on the infrastructure plan which was passed, to highlight that #DemocratsDeliver, a hashtag used by many candidates this year. 

Part of what that delivery has to include is the nomination and placement of a Supreme Court justice.

Waiting to name a replacement does not benefit President Biden

Right now, the Biden administration has a chance to take control of the public narrative and to start making the case to the public in support of a candidate. They can work to get through a supreme court process and then proceed on the passage of Build Back Better. Democratic senators can, in fact, walk and chew gum at the same time and keep our nation on firm ground in the middle of the COVID-19 crisis. 

This is a time to point out the differences in our parties.

Let me be really blunt. There aren’t just two qualified black women to be on the United States Supreme Court. We could spend an evening on Daily Kos discussing potentially qualified candidates. Conservatives will complain, angrily, about how many law degrees are given each year, and how that field is predominantly white and predominantly men, therefore, black women are being disproportionately represented in President Biden’s picks.

In fact, Republicans are already arguing that roughly 5% of American attorneys are Black, and therefore, being over-represented on the court. I kid you not on this argument. The Republican Party is prepared to stand on this argument. I say: bring it on.

Yes, I know a ton of attorneys from many sides of life who may have a law degree and passed the bar, but the fact they can handle your DUI case or process a divorce or injury litigation doesn’t tell me much about the overall field. The fact that white men dominate the field also doesn’t mean that no one else can be good enough at it to achieve the highest level of qualifications.

If Republicans want to have that argument, let’s have that argument. Let’s have that argument and scream it out loud, as loud as our voices will carry, and simply ask: “WHAT IF YOU CONSIDERED A BLACK WOMAN COULD BE YOUR EQUAL. WHAT THEN?” 

I argue it would help remind our base exactly where we stand on the issues and where the Republican party stands and show the stark contrast between a party that complains every day about critical race theory and how everyone is treated the same while making arguments against choosing from a rich talent pool. 

So, let’s have that argument.

Finally: Democratic voters like wins.

Passing infrastructure legislation, passing child credits, and helping build solutions matters. It’s why I favor student debt forgiveness, but that’s another story. Getting a win with the right nominee matters and gives our party base a reason to feel positive about what we are doing, and the way we are doing. 

Frankly, if Republicans want to try and throw wrenches in this—and I could absolutely see a Ted Cruz or his ilk try something ridiculous, I say: BRING. IT. ON. 

I’m ready to push our chips in and win. 

Republished with permission from Daily Kos.

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