My problems with What Happened, Hillary Clinton’s nearly 500-page self-proclaimed explanation for why she isn’t the 45th President of the United States as she fully expected to be, began around page 7. Clinton was describing how it felt to be sitting on the inaugural platform on the West Front of the U.S. Capitol when Republican Donald Trump, the man who actually won the election, was sworn in: “The day was unusually warm.”
What a year it has been. “Trump wins and the Resistance begins,” might sum it up. Into this maelstrom steps our annual “What would the Declaration say?” reflection. We could turn in three directions: toward Trump; toward “the Resistance”; toward the people who fall outside his devoted followers and fierce opponents, who wish to make some contribution to the commonweal in the midst of low-intensity civil war.
The old Democratic playbook on Republican Supreme Court nominations will no longer work for the Gorsuch confirmation hearings. Democrats used to spend much of their time talking about the importance of precedent and demanding that nominees follow it. The point, of course, was to protect one particular precedent above all—Roe v. Wade—and more generally keep alive the precedents favoring liberalism that were minted in the Warren and to some extent Burger and even Rehnquist eras.
But this approach no longer fits the times. One reason is multiplication of precedents that the Democratic base wants overruled. Citizens United is the best example. Hillary Clinton was even going to make its overruling a litmus test of her judicial appointments. But there are others too. Senator Schumer has already complained in the context of this nomination about Shelby County v Holder, which found a portion of the Voting Rights Act unconstitutional. And few cases enraged the left like Hobby Lobby, which held that closely held corporation had religious freedom rights under the Religious Freedom Restoration Act. More generally, given that liberals have not been a majority on Court in several generations, there is growing body of precedent they do not like.
And much of the Democratic party too is changing to become more openly radical. Thus, its base is not satisfied with simply standing on past precedent while hoping that the Court will drift their way. It wants the Court to be a more active partner in progressive social change.
This creates a dilemma for Democrats. The very important advantage of prioritizing precedent is that that appears to make them adherents of following the law, where the law is defined as the past case law of the Supreme Court.