Schumer Made the Right, Costly, Decision

40 years of Democratic complacency about federal courts is the real problem.

I don’t think Chuck Schumer is a bad Senate minority leader. I don’t think he’s an especially good one either. (He can’t hold a candle to House counterpart Nancy Pelosi.) But I do think something is getting lost is the controversy over Schumer’s decision Tuesday to cut a deal with Senate Majority Leader Mitch McConnell. The agreement fast-tracks the confirmation of 15 district court judges. As Sahil Kapur wrote:

The latest confirmations mean Trump, with the help of … McConnell, has already confirmed 60 judges to the courts—including 33 district court judges, 26 appeals court judges and Supreme Court Justice Neil Gorsuch. … They will shape U.S law for generations, as most are in their 40s or 50s.

The stakes are high. At first, it looked like Schumer rolled over. That was my initial reaction. Others shared it. Rick Hasen, an influential legal scholar and author of The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, wrote: “Why does @SenSchumer go along with this? What could possibly be in it for him?”

Others went further, saying Schumer is legitimizing an illegitimate president’s effort to enshrine minority rule in the courts. Or worse, that he’s complicit in aiding an illegitimate president recently implicated in federal crimes. Worse still: The so-called leader of the Democratic Party is committing political malpractice and must go.

Some were less outraged than critical of the Democratic Party’s instinct to preserve Congressional traditions and norms. Adam Jentleson, former Senate Majority Leader Harry Reid’s deputy chief of staff, said it’s folly for the Democrats to abide by norms that the Republicans are vaporizing. He suggested that Schumer bog down the confirmation process for judicial nominees by using procedural strategies. It wouldn’t prevent all of them from being confirmed, he said, but it might stop a few.

Power in the Senate is diffuse. Senate rules give the leaders virtually zero power. The power comes from norms, obedience and persuasion. If you can get senators behind you, you can wield a lot of power.

If you can't, you're ... not a real leader.

I don’t think it’s useful to doubt whether he’s a “real leader,” because Schumer is, in fact, a leader. It’s better to ask what he got in exchange, and whether it was worth it.

What he got was short-term relief for his caucus.

McConnell had boxed Schumer in by cancelling the August recess. His aim was two-fold: Ramming anyone who could fog a mirror through confirmation while running out the clock for senators—his and Schumer’s—to go back home to campaign.

More Democrats than Republicans are up for reelection, and most of them are running in states with conservative majorities. In cutting the deal, Schumer bought vulnerable Democrats time to campaign in states where they really, really, need to be present.

Add to this scenario three more facts.

One, McConnell had the votes needed to confirm the nominees. Schumer was going to lose in any case. Two, not one senator, not even progressive darlings like Kamala Harris, objected to the deal. The entire caucus recognized the wisdom of folding. Three, the Democrats are conserving their capital for the battle next month over the Supreme Court nominee. They knew they couldn’t beat 15 federal nominees, but there’s a chance of winning something in the fight over Brett Kavanaugh.

Some will say the Democrats could win by whipping up the base, just as the GOP has done. But that presumes the parties are the same when it comes to the judiciary. That is not the case. To Republican voters, the courts are everything. To Democratic voters, however, the courts have more or less been taken for granted for years.

Brian Fallon is the executive director of the progressive judicial group Demand Justice. Even as he excoriated Schumer, his former boss, saying, “It is hard to think of a more pathetic surrender heading into the Kavanaugh hearings,” Fallon knew better.

He told NPR’s Mara Liasson last month that the Kavanaugh fight is:

the product of 40 years of Republicans stoking grievance about the sense that the courts were completely a runaway institution that was promoting liberal values. How the courts as an institution worked in the mid part of the 20th century created a sense of grievance on the right and a sense of complacency on the left.

Schumer’s critics know the McConnell-Schumer deal can’t be fully understood out of context. On Tuesday, he played his hand, a losing hand. Schumer made the least-bad decision he could make: time for Democrats to win back the Senate in exchange for 15 federal jurists who will shape the contour of law for decades in unknowable ways.

Was it worth it? For now, yes.

This is not to say critics shouldn’t blast Schumer. Blast away, I say, if that gets Democratic voters to take the courts, especially the Supreme Court, seriously.

I don’t mind sacrificing a Senate leader.

Even if he’s not an especially bad one.

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