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Commentary: Don't destroy the Supreme Court to save it from Trump

"Democracy in Peril" is the headline at the liberal webmag "Salon."

At the socialist publication "Jacobin," leftist activists say the danger is so great that Democrats must pack the Supreme Court to protect it from the legacy of President Trump. 

On CBS' "The Late Show with Stephen Colbert," liberal celebrity and activist Michael Moore says it's time to get rid of the Electoral College.

Meanwhile, former Republican Max Boot writes in the Washington Post that the GOP, "like postwar [Nazi] Germany and [Imperial] Japan must be destroyed before it can be rebuilt."

Ripping the Electoral College out of the Constitution, packing the U.S. Supreme Court and wiping out the party of Lincoln wouldn't have sounded extreme three years ago. No, it would have sounded insane. 

And yet many Americans on the Left are embracing these ideas on the premise that the Trump presidency is so destructive, so beyond the political pale, that only extremism can save us from it. Really? Save us from what?

For all the sound and fury of Trump and his twitter feed, it has signified very little when it comes to our democratic institutions. Trump haters are right when they argue that he presents an unusual -- even extreme -- test of America's political institutions. Where they are wrong is conflating "my team is losing" with "the system is failing and must be destroyed!"

The Trump presidency isn't some strange, extra-democratic phenomenon. It's precisely what happens when the American people give a guy like Donald Trump and his political party in Congress the power to govern. It's no more "perilous" than when they did the same with Barack Obama and the Democrats a decade ago, or Bill Clinton and his party in 1992.

As for the idea that our democratic institutions are in disarray, that's demonstrably nonsense. Starting with the Supreme Court.

Yes (my liberal friends, you may want to sit down for this one) a Republican president and a Republican U.S. Senate are going to put a conservative judge on the Supreme Court. Shocking, right?

Suggestions from Democratic Senate leader Chuck Schumer that Trump should pick an Obama-backed liberal jurist like Merrick Garland aren't just politically ridiculous, they're anti-democratic. Millions of Americans voted for Trump in part because they didn't want Hillary Clinton picking judges.

No matter which Supreme Court seat was vacated, from Anthony Kennedy to Elena Kagan, Team Trump was going to pick a Brett Kavanaugh or Raymond Kethledge or Amy Coney Barrett -- just as if Hillary had won, she'd want another Ruth Bader Ginsburg or Sonia Sotomayor. 

Don't like Trump's picks? Good news—the Constitution provides a simple solution: Elect more Democrats. That's how you fix the alleged "problem"—not by packing the court.

Democratic talk about expanding the Supreme Court to 11 or 15 members when they eventually take power in the future so they can appoint liberal justices and take back the majority would be far more damaging to the judiciary than any pick Trump would ever make. 

Even President Obama's former White House counsel Bob Bauer sees that. In a recent Atlantic article with the subtle title "Don't Pack The Courts," Bauer supports the view of legal scholar Richard Pildes that President Franklin D. Roosevelt's court-packing proposal in 1937 was so wildly unpopular that it "damaged the New Deal coalition beyond repair, drastically weakening Roosevelt's capacity in the following years to implement his domestic-reform program."

Partisan court-packing undermines the fundamental premise of the SCOTUS: that it is above politics. (In theory, at least.)

Not only that, but has anybody noticed that for the past 18 months the court has been working just fine? It's ruled for Trump (travel ban, voter rolls) and against Trump (also the travel ban, and environmental regulation). 

There is no evidence whatsoever that Trump has somehow corrupted the Supreme Court or nominated anyone unfit to serve as a justice.

Yes, there's anger that his appointments aren't being held to a 60-vote standard, but that wasn't Trump's doing—that was Democratic Senator Harry Reid. As Majority Leader in 2013, he took one of those "democracy's in peril!" actions and invoked the so-called "nuclear option" of using a simple majority to change Senate rules on presidential appointments. While it's true that he didn't extend the rule at the time to Supreme Court picks, it's also true that Obama never had such a pick under the Reid Rule until after the GOP had taken control of the Senate.

In hindsight, the Democrats' big mistake (as many of them now admit) was doing exactly what they're considering today: a drastic change made to a fundamental rule in our democratic system in response to a partisan political moment. Yes, Republicans were making it tough to get Obama's court picks through in 2013. But protecting the rights of the minority party was a larger part of protecting how our democracy works.  

Now it's gone, and Democrats are hoist on their own political petard. 

And for all the talk about Trump destroying our democracy, it should be noted that the most democratic institution of all, the Congress, is working largely as designed. While the GOP-controlled Senate has backed Trump's judicial choices, it has not rubber-stamped the rest of his agenda. Republicans stopped the Trump-backed ObamaCare repeal and forced serious modifications of his original tax-cut proposals. Congress has yet to appropriate money for his border wall with Mexico, and Trump's policy proposals on immigration can't get a congressional majority from his own party, much less the Congress as a whole.  

Is Congress a mess? Of course it is. It's Congress. That's not Trump's fault. And Americans will be free to put a new group of people in charge of that mess this November, right on schedule.

As for dumping the Electoral College, if anything, that idea's even more extreme than court packing.  And why is it necessary?

Today it appears that the GOP has an advantage, but who knows what the map will look like a decade from now? As population shifts from blue states like California and Massachusetts to red states like Texas and Georgia, a future electoral map could unfold that benefits Democrats. Do they really want to blow up a system that's worked well for more than 200 years because in one election it gave us President Trump?

Just a reminder, Democrats: Despite his tremendous political talents, Bill Clinton was never able to win 50 percent of the popular vote.

As for the future of the Republican Party, perhaps blowing it up would benefit America. But it's also interesting that the "GOP Establishment" tried very hard to prevent Donald Trump from becoming their nominee. If anything, the Trump presidency is the result of the weakening of the GOP's party structure—a structure that was designed to help elect more mainstream candidates. 

If Max Boot wants the GOP destroyed, in one sense he's already gotten his wish. The Republican Party and its establishment were blown up by Donald Trump and his populist candidacy that overran the party itself. (Much as Bernie Sanders would have done to the Democrats without intervention from the Democratic National Committee.)

Trump doesn't have power today because non-existent "GOP Bosses" give it to him, but because about 90 percent of Republican voters support him. 

The Left's fear is that the Trump presidency will destroy our democratic institutions. Is their solution going to be to destroy them first?

  • Michael Graham

    CBSN contributor Michael Graham is a conservative columnist for the Boston Herald.