Democrats, It's Time for Constitutional Jiujitsu

The passing of Ruth Bader Ginsburg is devastating, and represents the loss of an extraordinary human being and woman who was an icon of gender equality and the intellectual and moral center of the Supreme Court's diminishing core of true liberal democrats.

The handling of the Merrick Garland case in 2016, and the likely handling of Ginsburg's replacement now, is important but only the tip of the iceberg.

Her loss is a blow to human decency and constitutional democracy at a time when these things are profoundly in jeopardy.

And it sets in motion a real political contest, within the broader electoral contest, in which the results could be terrifying--a Mitch McConnell-led rush-job to affirm a Donald Trump nominee who would surely be young, ideological, and committed to rolling back a range of constitutional liberties, including reproductive freedom and voting rights. Even more terrifying, such a person could represent a pivotal court vote in throwing a contested election to Trump, and such a move could even be a quid pro quo of nomination. I might once have described such a result as unimaginable. But nothing is now unimaginable.

I strongly support those--Neal Katyal, Michelle Goldberg, my friend Jeffrey Tulis--who are now calling for the Democrats to play "constitutional hardball," and use every constitutional means at their disposal to prevent a Trump nominee from being confirmed in the run-up to the election. Democratic threats to employ a range of legislative tactics including the elimination of the filibuster rule are entirely legitimate. Serious discussion of using a Democratic majority next year to increase the number of justices on the court, or to legislate statehood for Washington, D.C. or Puerto Rico--these are constitutionally legitimate possibilities. And there is no reason for Democrats to be reticent to consider, to threaten, and eventually to employ these remedies at a time when the Republicans are doing anything and everything to dominate the political process.

At the same time, I think that the metaphor of "constitutional hardball," while containing real insight, has now lost its usefulness.

This metaphor trades on an implied contrast between two ways of playing the game of baseball--"hardball" and "softball"--that involve some real differences but basically involve playing the same game by the same rules. The Republicans have been bringing hardballs to the Democrats' softball game for many years. But recently the Republicans have been doing much more than using smaller and harder balls and employing fastball pitching. They have been feeding their players performance-enhancing steroids; stealing signs; paying off umpires; and bugging their opponent's dugout and locker room with the assistance of surly foreigners who do not know the game of baseball but are experts in espionage. Indeed, lately they have taken to using every means at their disposal to literally assault their opponents, directing their pitchers to routinely throw at the heads of opposing batters; directing their baserunners to stray from the base paths to attack opposing fielders and to spike them whenever possible; and starting brawls in which leather-clad bikers surprisingly emerge from their dugout wearing MAGA caps to beat their opponents with baseball bats and tire irons.

This is not baseball.

It is a different game, played by other rules, and indeed played by rules that are changed at will by the ruthless Republicans in control of the White House and the Senate.

It is thuggery.

And it is not a way of manipulating the Constitution. It is an assault on the Constitution itself, and on the very character of partisan political competition and free and fair elections in a constitutional democracy.

Jiujitsu is not about standing head to head with a thug, trading blow for blow. It is ideally a form of self-defense that out-maneuvers an opponent and then defeats them.

The handling of the Merrick Garland case in 2016, and the likely handling of Ginsburg's replacement now, is important but only the tip of the iceberg. Trumpism is an assault on liberal democracy. I have neither the time nor the desire to once more recount the ways. I will simply offer a single word, "impeachment," followed by an observation: everything that happens between now and January 21, 2021 takes place under the shadow of the effort of Trump, his "Justice" Department, and his congressional Republican allies, to hold onto power by any means necessary, which include a bogus "Durham investigation," bogus Senate hearings about "the Russia hoax," and the various ways that the Trump administration is deploying force, inciting violence, threatening political opponents, sabotaging the election, and setting the stage to contest a Joe Biden electoral victory.

This an assault. And it needs to be seen for what it is, and to be countered appropriately.

We need to fight back, in self-defense and in defense of the Constitution.

The question is how.

And this is why I have used the analogy of jiujitsu.

Because jiujitsu it is a way of fighting-a martial art--that is strategically and tactically clever, and typically employs an opponent's force, along with positionality and leverage, to great advantage. Brazilian jiujitsu extends this logic a bit further, incorporating techniques of wrestling and judo to take bullies down to the ground, where their size and their punches can be neutralized through the use of joint locks and, yes, chokeholds, to defeat an opponent who only knows how to brawl.

Jiujitsu is not about standing head to head with a thug, trading blow for blow. It is ideally a form of self-defense that out-maneuvers an opponent and then defeats them.

The Democrats need to practice jiujitsu now.

Flailing at the Republicans, issuing a flurry of threats, promising to eliminate the Electoral College, etc.--such moves are not clever now. Democrats need to be clever now.

What does this mean? I submit the following as proposals:

• The Senate Democratic leadership should strategize about the entire range of legislative tactics that can be employed, now, to forestall a rushed SCOTUS replacement appointment. This includes possible threats to eliminate the filibuster if the Democrats win back the Senate in November.
• Democratic congressional leaders need to prepare a range of possible measures that might be taken up in 2021-22, including D.C. and Puerto Rican statehood, and including the expansion of the size of SCOTUS. These are legitimate possibilities; threatening them might supply some effective leverage on Senate Republicans; but more importantly, these may well be democratizing moves that should be taken up legislatively on their own merits.

  But while these ideas must be seriously considered, this does not mean that they ought to be treated as central political themes or promises in the run-up to the election. For such promises could backfire electorally. Indeed, Trump and William Barr have already started saying that the Democrats seek to upend the Constitution. There is no reason to furnish these demagogic despots with rhetorical ammunition. And indeed, some of the more radical measures--which I would support--probably require at least some sustained political work, within the Democratic party and among some of its base, in order to explain and make them popular.

  Obviously, who says what now matters. It may be wise for some more "radical" Democrats--Bernie Sanders, Elizabeth Warren, Pramila Jayapal, Jamie Raskin, Alexandria Ocasio-Cortez, etc.--to publicly articulate these possibilities, to invoke them as leverage, and to place them on the agenda for future action. It is also probably wise to expect Chuck Schumer and Nancy Pelosi to be more "moderate" in their rhetoric. For this is who they are. And they are now the leaders of congressional Democrats. Could that change? Yes. Might an unfolding crisis lead to a change in 2021? It's possible. But right now, it makes sense for the leadership to be very tactical. They should not be expected to lead the call for a set of robustly democratic institutional changes at this moment. It is good that Schumer has declared that if a Trump nominee is confirmed by this Senate, then "everything is on the table." But it is likely that a Trump nominee will be confirmed by this Senate, and in that event one should not hold one's breath waiting for Schumer to start waving around Daniel Lazare's very fine 2017 piece in Jacobin calling for "A Constitutional Revolution."

• And Joe Biden should not be expected to be anything other than Joe Biden. He is what he is. The passing of RBG will not transform him into a firebrand, nor will such a transformation do any good for his candidacy or for the party's chances of retaking both the White House and the Senate in November. Biden needs to play this as the defender of the Constitution and of constitutional democracy. He needs to keep emphasizing Trump's murderous Covid failure, and his incitements of violence and his hostility to the Affordable Care Act and on more universal access to affordable healthcare for all Americans. Biden can denounce the hypocrisy of McConnell and Lindsey Graham. But he cannot take up the cause of broad constitutional reform, because now is not the time for him to do this, and because he is not so disposed. A different and perhaps better and more energetic or forward-looking candidate could do more. Kamala Harris--who is only the VP candidate, and who still has a role to play on the Senate Judiciary Committee--can do more, be more vocal, etc., than Biden, and this could be terrific.

But the important thing now is to win in November, across the board and at every level.

Trump and his Republican enablers are not to be taken lightly. But they are vulnerable, and opportunism in responding to RBG's passing could make them more vulnerable.

The sad passing of RBG underscores the stakes.

Democrats must fight to win.

But this is a complex fight, and it will not be settled by a single blow. Trump and his Republican enablers are not to be taken lightly. But they are vulnerable, and opportunism in responding to RBG's passing could make them more vulnerable, by mobilizing women and minority voters--including so-called "suburban" Republican women who care about reproductive freedom--to come out in droves in November. There are a range of tactics that need to be employed to position the Republican opponent in such a way that he can be decisively defeated.

Trump and his party must be defeated. They must be out-maneuvered, brought down, and decisively vanquished.

And once they submit, and the Democrats again are in control, the real work of renovating American society and reinvigorating American democracy can and must proceed. It would be a wonderful irony if the passing of Ruth Bader Ginsburg, who always argued that only democratic politics can ensure social justice, would help to energize the democratic politics we need now more than ever.