Recent events have die-hard partisans on either side of the aisle celebrating. This should worry us.
Example one: Democrats are increasingly salivating about the possibility of a blue trifecta — keeping the House while turning the Senate and White House. Talk of putting country before party, however well intentioned, is likely to wither before the wide open temptation of having it all.
Already reports are circulating about a new New Deal passed on a budget reconciliation vote (meaning 51 votes are required to pass it instead of 60). With reconciliation, there’s no possibility of a filibuster, setting aside that landmine reform for now. The package is likely to contain as much of the left’s agenda as possible: workers benefits, taxes, climate reforms, health care.
It is harder to put forward consecutive pieces of legislation than doing it all at once, and political capital tends to dwindle, not accumulate, during an administration. There will be nods to the right, but incrementalism, prudence and togetherness will be low if the Senate’s not standing in the way. Why heed yellow when all lights are green. Never let a crisis go to waste. And Americans certainly feel like they’re in a crisis.
Example two. Republicans are giddy about the historic opportunity to fill a third seat on the Supreme Court in four years. And why shouldn’t they? The president and Senate are entrusted with the responsibility to nominate and confirm Supreme Court vacancies during their tenure and they have (at least) four more months left in their terms.
Yes, it is hypocritical based on their own logic used to deny Merrick Garland a vote. No, the timing for confirming justices should not depend on whether the president and Senate are of the same party, as The Wall Street Journal recently argued. Yes, confirming Supreme Court justices on a simple majority is new to President Donald Trump and makes confirmations innately more political; President Barack Obama’s two nominees received supermajority approval.
The Supreme Court is the crown jewel of the Trump era. Despite widespread disapproval over Trump’s Twitter rants and character, his strange affection for dictators of rival nations, and divergent Republican view on his approach to immigration and taxation, it’s hard to find even a RINO who is disappointed in securing three Supreme Court seats.
But we are about to see why Thomas Jefferson famously said, “Great innovations should not be forced on slender majorities.” A new New Deal and conservative court are no antidotes to our disease, and the brazenness of how both are pursued is likely to make victory short lived and the underlying system grow more frail.
If a New Deal is passed on a party-line vote, this would mark the 12th year of the American people having partisan legislation crammed down their throats regardless of which party occupies the White House. (See Obama’s Affordable Care Act and Trump’s tax reform.) In the past, Americans haven’t taken it sitting down. They have flipped Congress in the midterms, or the next president’s campaign was energized by dismantling his predecessor’s signature achievement. This would be an albatross of Democrats in 2024, when voters remember that in the heat of the worst crisis in recent memory, it was used to pass a partisan wish list.
As for the court, reports are bubbling about House Speaker Nancy Pelosi’s parliamentary tactics to delay a Senate vote, or more significantly, the possibility of changing the size and makeup of the Supreme Court in retaliation for what is really the Republican Senate’s hypocrisy, as they’d be well within their rights to confirm a qualified justice.
While outside of accepted practice for the last 150 years, it is within the bounds of constitutional authority to change the number of Supreme Court justices and not without precedent. Doing so would eviscerate Republicans' progress to control the courts, once thought to be a decades-long insurance card. Does anyone think that once such ground is broken again, politicizing the Supreme Court — the federal body with the most trust relative to Congress and the White House — Republicans wouldn’t react in kind?
It’s not just that the differences between both sides have grown extreme, say in what health care or education policy should look like, making it more difficult to navigate sustainable reform. It is that the norms of engagement and the rules of the game are now up for grabs. Politicians are bumping up against the guardrails and finding that they can be lifted up and moved to wherever is convenient. And so, move them they will, with members of their party cheering them on to the horror of the other side, which also happens to be feverishly taking notes.
We’ve learned a lot about how both sides plan to take ground in this dog-eat-dog political environment. But such victories mean less and less, if they eat away at the foundation on which true reform lasts. Leadership is not parliamentary tricks, shortcuts or taking ground at any opportunity, because of course, “they did it first.” Desperately needed, leadership is taking the longer view on what steps are needed to restore norms, rules that both sides abide by.
It’s harder to know what that looks like exactly (though I think we can objectively agree that this isn’t it). Some such as columnist George Will and the American Enterprise Institute’s Jonah Goldberg and others have put forward a deal for Republicans to delay confirmation in exchange for Democrats not packing the court. I like the spirit, but this feels a bit like blackmail, as presumably the opposing party could promise to pack the court whenever a nomination process didn’t go as they had planned.
A better approach may be committing to nominees who generate supermajority support, as has been the long-standing practice until recently, and ensuring transformational legislation has support beyond a singular political constituency so it’s not washed away with the next administration. Notably these suggestions come from the sidelines. Few if any politicians are making their bed on prudence, restraint, institutional strength and decorum.
When everyone starts changing the rules of the game, there ceases to be a game at all. But many players, convinced they’re winning, charge ahead.
Abby McCloskey is an economist and founder of McCloskey Policy LLC. She has advised multiple presidential campaigns. Website: mccloskeypolicy.com
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