| There are a number of good reasons to hand Harris the reins, beginning with the fact that in these times of Covid-19, it’s harder to hold big campaign events safely (and Trump seems willing to risk the health of his supporters in the service of ego-stroking rallies). If Democrats cede the spotlight to Harris, what otherwise would have been a rather perfunctory matter becomes a campaign showcase, one that’s sure to draw media attention and give the Democratic base the chance to watch Harris, a former district attorney and state attorney general, do some pointed cross-examination. More importantly, Harris can use this opportunity to properly frame what’s at stake and explain what the conservative judicial project is all about.
Right now, the prospect of a 6–3 conservative court has sent ribbons of worry through Democrats about the future of such matters as reproductive rights, LGBTQ equality, and Obamacare. These are reasonable fears, but I would encourage everyone to think of McConnell’s long campaign to remake the federal judiciary not as an attack on the products of liberal governance—on what Democrats want to do—but rather as an attack on how Democrats would do it. His goal is to permanently lock Democrats out of policymaking itself by razing the administrative state.
In a previous newsletter, we discussed some key doctrines that conservatives on the Supreme Court are looking to dismantle. One is “Chevron deference,” which binds courts to the notion that an agency’s interpretation of an ambiguous regulation should prevail. The second is “Auer deference,” which holds that the judiciary should not interfere with an agency’s own reading of a regulation as long as it meets a reasonable standard. These doctrines form the means by which the executive branch can regulate polluters, banks, corporate scofflaws, you name it. If agencies don’t have the leeway to interpret statutes, they can’t function—and liberal governance is nigh impossible. As Ian Millhiser explained last year, if the executive branch “can’t regulate without getting permission from a Republican judiciary … then conservatives no longer need to worry about Democratic presidents doing much of anything that doesn’t meet the GOP’s approval.”
The prospect of a 6–3 Scotus has reenergized calls from the left to reform the high court, with proposals ranging from jurisdiction stripping to court packing. But it might be dangerous for Joe Biden and Harris to campaign on these ideas because they sound radical to many voters and will almost certainly get the pundit class wagging critical tongues. The Democrats don’t need to promise radical reform at this precise moment; they just need to explain what’s at stake. If the Democratic base comes to understand what the conservative judiciary project really intends, it would create a more favorable political environment for bold judicial reform down the line.
This is a project that all Democrats can rally around, but it’s especially meaningful for Kamala Harris. As Biden’s running mate, she essentially represents the future of the Democratic Party, the guardian of whatever good Biden does and the leading force for building on those gains. If Trump’s Supreme Court has its way, that future may be moot. So give Harris the mic, and let her start fighting for it now. | 