May 9, 2021

Tarantella Berlin

Specialists in law

Some ideas from Democrats are both bad policy and bad politics

Democrats have recently proposed several initiatives that are all political, involve government overreach, and are unlikely to be enacted. Moreover, these liberal reforms could produce backlash that could cost Democrats control of Congress and perhaps even the White House in the future.

The reforms include packing the Supreme Court, eliminating the filibuster, granting statehood to the District of Columbia, and paying reparations for slavery. Yet there is another way to proceed to achieve these objectives, albeit more modestly, and to effect social and economic change in a way that is bipartisan and in the interest of the party and our democracy.

I understand the concerns from Democrats about the tenderness of their Senate majority. The institutional structure of the Senate is advantageous to Republicans, and Democrats are looking for ways to level the political playing field. I am sympathetic to the concerns about the Supreme Court, given Senate Minority Leader Mitch McConnell blockading the seat for Merrick Garland under President Obama, which was followed by his rush to confirm Amy Coney Barrett a few weeks before the last election.

While these concerns are justified, Democrats should not play politics with the Senate and Supreme Court. Democrats should instead pursue effective and targeted actions that could conjure up bipartisan support. To ensure that future nominees do not endure the same roadblock as Garland, legislation that enacts a deadline of 90 days for confirmations would be a reasonable and perhaps even bipartisan solution. This same timeline can be set for district and appellate judges, which prevents the Senate from sitting on nominations until a new president is sworn in.

Further, both parties could work toward a constitutional amendment to limit the Supreme Court at nine justices while also setting term limits. In a recent editorial analysis, Aaron Blake of the Washington Post reasonably suggested term limits of 18 years, which gives justices nearly two decades to serve on the bench while creating more predictability for both parties, with less reliance upon the timing of justices either retiring or dying.

Democrats have introduced a bill to expand the Supreme Court, which would allow the party to put more liberal justices on the bench, but the bill has little chance of making it through both chambers of Congress. In order to get the bill through the Senate, along with other priorities, many Democrats have reignited the debate on eliminating the filibuster.

I strongly urge my party not to do this because the filibuster is a necessary tool that ensures a level of bipartisan work is built into the system and is of the utmost importance in the extreme partisan climate we have today. Eliminating the filibuster would simply allow the party in control to push through massive legislation without support from across the aisle.

Both parties have avoided bipartisan legislation when it is convenient by using the budget reconciliation process. Senate Republicans passed the Tax Cuts and Jobs Act, which increased the debt, with no support from Senate Democrats, who have passed the massive American Rescue Plan, which may fuel inflation, with no support from Senate Republicans.

In terms of the political impact, eliminating the filibuster would come across to voters as a power grab by Democrats, similar to the effort to grant statehood to the District of Columbia. The House Oversight and Reform Committee has passed a bill to do so. Democrats frame it as an important step for representation and voting rights, while Republicans deride it as a partisan maneuver to give Democrats two more Senate seats. Moreover, it is also unlikely that such a bill will become law.

It is also unlikely that legislation on reparations for slavery, which comes amid a national reckoning over race and justice, will pass Congress. While I do not favor reparations, I do favor more vocational training, educational enrichment, and even the creation of jobs by the government for people of color. These are reforms that will change things for the better. However, a fight around slavery and its aftermath will arguably not have anywhere near as much positive impact, and could engender some backlash.

Ultimately, each of these proposed policies stem from understandable concerns by the left. But Democrats should not play politics with our institutions or push reforms without bipartisan support. They should pursue more effective and targeted actions that will fix the system.

Douglas Schoen is a political consultant who has served as adviser to Bill Clinton and to the campaign of Michael Bloomberg. His new book is “The End of Democracy? Russia and China on the Rise and America in Retreat.”