Some Democrats believe the Constitution is a “heads we win, tails you lose” arrangement. The passing of Justice Ruth Bader Ginsburg, a liberal icon, is shining new light on this dangerous hypocrisy and highlighting the importance of filling the Supreme Court vacancy as quickly as possible. There is no compromise possible when the opposition insists on changing the rules so only they can win.
Consider that Democrats loved the Electoral College when it might help them—now they’re sure it’s a racist plot. When the Supreme Court forced abortion-on-demand and same-sex marriage on the entire country, it was a hallowed institution that must be respected. But if the Court allows minor regulations on abortion or might even return the issue to democratic processes in the states, it must be destroyed by “packing” it with ideologues.
There were no complaints about the Constitution when Bill Clinton received just 43 percent of the popular vote in 1992 and 49 percent four years later. The Electoral College amplified those victories, as it usually does, with Clinton winning 69 percent and then 70 percent of the electoral votes. In 2000, the Al Gore campaign believed he might win the electoral vote but lose the popular vote, and so prepared a memo defending the Electoral College.
Of course, the opposite happened: Gore received slightly more popular votes while George W. Bush won a narrow electoral vote victory. After Gore lost, a group of Democrats cooked up a plan to nullify the Electoral College. Their National Popular Vote campaign today is nearly three-quarters of the way to doing exactly that. Why? Because Democrats think it will help them win the White House.
They even claim the Electoral College is racist. A New York Times headline in August said support for the constitutional system is “connected to the idea of white supremacy.” The opposite is true. In the 1950s, efforts to abolish the Electoral College were connected to Southern Democrats who wanted to reduce the power of minorities—they singled out blacks and Jews—in their party. On the other side was John F. Kennedy and, by the 1970s, the NAACP, National Urban League, and other civil rights groups, all defending the Electoral College.
Also, defending the Constitution back then was none other than The New York Times. It editorialized in 1977 that “the political habits, traditions and expectations that have grown up around the Electoral College have served the nation well. If they are to be maintained, the College has to be preserved rather than lightly abandoned in favor of a vacuum.”
The Times was as right then as it is wrong now. The Electoral College, like other constitutional processes and checks and balances, does not play favorites. The presidential election process benefits whichever party is better at coalition building across this vast and diverse nation. It stops both parties from winning by driving up vote totals—legitimately or by fraud—where they are already overwhelmingly popular. And it keeps states—rather than presidential appointees—in charge of presidential elections.
Now, conservatives are poised to flip a seat on the Supreme Court. The Constitution gives the president power to nominate and the Senate the power to confirm, and voters have put both institutions in the hands of Republicans. No one expects Democrats to like it. Republicans fumed when then-Sen. Joe Biden blocked the Supreme Court nomination of Robert Bork in 1987, and again when Senate Democrats blocked numerous appeals court nominees during George W. Bush’s first term.
Democrats, however, are threatening to destroy the Supreme Court. That is what “court packing” means. The threat is that, if Democrats win enough power in this or a future election, they will add justices to the Court sufficient to guarantee future rulings favor their leftist positions. Once done, the Court could never again have credibility as a judicial institution, but it could force the left’s policy agenda on America.
Consider the hypocrisy of those who attack the Electoral College for being undemocratic and then insist on controlling the Supreme Court to advance their agenda. And consider the danger of this ultimate ends-justify-the-means politics. No constitutional norms are safe if one side insists on changing the rules anytime it loses.
The only answer for Republicans is to move ahead, following the Constitution’s rules. This may be especially important now, with so many lawsuits pending and threatened over the election. Leaving the Supreme Court shorthanded and potentially deadlocked could be disastrous. And Democrats need to remember that it’s possible to spar over candidates and policies and still commit to a set of shared rules—the Constitution.