Stephen Gottlieb: What's Nancy Up To?

Jan 8, 2019

If you or I were in a negotiation, we wouldn’t start with something that looked like the other side’s position – the bill that passed the Republican-controlled Senate, a bill that the man in the White House once said he’d sign. We’d load the proposal with other stuff we wanted and let the other side try to bargain us down with concessions of their own. Is Nancy nuts? I wouldn’t bet on it.

Bargaining in public is a very different game. This negotiation isn’t about horse-trading; it’s about bringing the public along, not just liberal Democrats like me – there aren’t enough of us to win elections by ourselves, and the power is in the prediction of future elections – that’s what pushes both sides around. So, she took a very conciliatory position, a Republican position, a position both houses of Congress had supported, and said, in effect: Here’s a reasonable position, Mr. President; why don’t you be reasonable too?

Of course, the big game down the road is impeachment. That will take a good deal of Republican support. The more unreasonable Nancy can make Donald look, the quicker he becomes a powerless lame duck. Then it will be time to talk about what I want.

The Constitution allows the House to stop Donald from appointing any more partisans to the federal judiciary. The Republicans have understood for years that judges are central to getting what they want and the Supreme Court has been giving it to them:

  • The Republican judiciary blessed gerrymandering and Republican efforts to keep Democrats away from the voting booths, decisions that took power out of the hands of Americans and undercut self-government across the board
  • The Republican judiciary turned the clock back on unions, women’s rights to control their own bodies, and the right of people of color not to be killed by people claiming to be terrified by the backs of African-Americans who might have turned around
  • The Republican judiciary stopped the count and sent Al Gore, the Democratic candidate for president, back into private life, choosing instead to elect George Bush, and ultimately tearing both the American economy and the Middle East apart – decisions that did a great deal of damage to huge numbers of Americans.
  • The Republican judiciary penalizes people, whites as well as Blacks, for being poor
  • America needs and deserves a fair, not a partisan judiciary making decisions by whose side it helps or whose party line it follows

Democrats could simply refuse to appropriate funds for open judicial seats. The number of seats on all federal courts are just statutory and can be changed so long as the positions and salaries of sitting judges are not diminished. Seats on the Supreme Court have varied from five to ten; there’s nothing sacred about nine. Seats on the lower courts have varied even more. Can’t stand allowing Barack Obama to nominate the centrist Merrick Garland? Democrats need not give Donald the power to fill open positions with partisans whose main goal is to keep him and other Republicans in power.

But leadership isn’t just about making good decisions; it’s about bringing the people along. A leader must have the humility to understand that they can’t produce shifts by snapping fingers. That’s one of the attributes for which I have always admired Franklin Roosevelt. I’m rooting for Nancy.

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran. 

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