Jul 13, 2018 4 min read

”To the victor belong the spoils.” – Sen. William Learned Marcy of New York, 1832

In the 2016 presidential election, one of the central issues of great import to voters was the future composition of the U.S. Supreme Court. As we know, Donald Trump won the election, and he has just made his second nomination to the high court in his first year and a half in office.

Democrats are predictably apoplectic about what the replacement of sometime swing-vote Justice Anthony Kennedy with conservative federal jurist Brett Kavanaugh could mean for the Affordable Care Act, women’s reproductive rights, organized labor and the rights of the LGBT community.

Democratic lawmakers and activists are promising a full-court press in an attempt to scuttle Kavanaugh’s ascension to the high court, and while we are no doubt in for months of hand-wringing, lobbying, strong-arm tactics and full-on obstructionism, in the end it’s likely that Kavanaugh will be fitted for a Supreme Court robe a few months from now.

Our current round of high-court rancor began in February 2016, early in the presidential election year, with the death of conservative Justice Antonin Scalia. President Barack Obama nominated Merrick Garland to fill the position, but Republican Senate Majority Leader Mitch McConnell already had made it clear that he would not grant even so much as a hearing to any nominee proffered by the president, saying that the next president and Congress should decide who would fill the open spot on the court.

We all know how that election went, and in early 2017, new President Donald Trump chose arch conservative Neil Gorsuch for the high court, and his nomination was approved by a Senate that was still in Republican hands.

Did Republicans “steal” a Supreme Court seat in 2016? Absolutely. They were in a position to do so, and they did it. It was undemocratic and a reprehensible affront to our system of government, but Democrats nationwide had an opportunity to stop it from happening, and let’s be honest, they failed miserably.

It was known many months before the November 2016 general election that the future of the Supreme Court – and of the many important issues that would come before it, including reproductive, LGBT and worker rights – hung in the balance. Yet not enough Democrats turned out in certain states to prevent Trump from defeating Hillary Clinton, and Republicans from retaining their grip on the Senate.

Certainly, Republican efforts to disenfranchise minority voters played a role in some locations, but we can’t ignore the fact that Democratic power brokers and “money people” played into Republicans’ hands by delivering the nomination to Hillary Clinton on a silver platter, despite what should have been grave concerns about her appeal to the wider electorate. There were polls well before the Democratic nomination process was over that showed Clinton struggling against Trump in a potential head-to-head matchup. Yet the Democratic powers that be, and the vast majority of superdelegates, already were all in behind her candidacy, discouraging other, potentially better candidates from even entering the race.

If the Democrats are smart – and the jury is certainly still out on that question – they will put every resource available to them into getting out every vote possible in this fall’s U.S. Senate elections. And after that, they should be ensuring that the next presidential nominating process will be open and transparent, in hopes of selecting a candidate who will appeal to a broad spectrum of voters from coast to coast.

Failing that, we can expect to see a Supreme Court that turns even more conservative in the relatively near future, and one that could remain staunchly conservative for decades to come.