What Kamala Harris Leaves Out of Her Case Against Donald Trump
She needs a Democratic Senate to have a prayer of fixing the Supreme Court and to prevent total obstruction.
KAMALA HARRIS IS MAKING MANY WORTHY ARGUMENTS against Donald Trump, including emphasizing his lies, hate, and lawlessness. But there is a crucial piece missing in the Democratic case against Trump: the need to elect not just Harris but also a Democratic-led Senate.
The thing is, you can’t take it for granted that most voters remember their high school civics classes and pay attention to the daily workings of government. They don’t, and it has nothing to do with anyone’s smarts or political leanings. People are busy. Maybe they have kids or two jobs. Maybe they’re young and disengaged. Maybe—highly likely!—the work they do does not involve sitting at a computer or monitoring politics.
In a poll last month, just over half of Americans knew which party controlled the Senate (Democrats) and House (Republicans). The rest, 44 percent and 42 percent respectively, did not. In the same poll, 65 percent correctly named the executive, legislative, and judicial branches of government; 21 percent could name one or two, and 15 percent could name none.
I tried but failed to find a poll of whether people know about the make-or-break Senate role in confirming or blocking Supreme Court justices and all other federal judges. If it’s too deep in the weeds for pollsters to ask about, I’m betting it’s not top of mind for a good chunk of voters, either. [Author update, October 15, 2024, 10:30 p.m. EDT: The Yale Youth Poll released on October 15, 2024. a day after this piece was published, did ask about the Supreme Court appointment process. It found that 42 percent of voters aged 18–29 and about a quarter of all voters got it wrong or didn’t know.]
It’s up to Harris to connect the dots—to be explicit about why she needs to win, and why she needs a Democratic Senate to help her confirm judges and justices who do not have ideological or religious agendas like stamping out and criminalizing abortion; who do not suddenly decide presidents are immune from prosecution if they, say, use the IRS to punish their enemies or the Justice Department to overturn an election; and who do not hold that new gun safety laws must be “consistent with the nation’s historical tradition of firearm regulation.” Whatever that means (and confused judges say they don’t know).
Senate Republicans are already talking about seating more Supreme Court justices just like the three Trump justices who were on board with all of the above. Trump worked with “conservative legal organizations to come up with the best people, and I thought he did an outstanding job with the Supreme Court” in his first term,” said Sen. John Cornyn (R-Texas), who is running for Senate Republican leader. “The three we’ve confirmed has been a legacy, one of the best things the administration and President Trump did with a Republican majority.”
In other words, expect more of the same if Trump wins, a justice or two retires, and Republicans control the Senate. Trump could end up being the first president since Franklin Roosevelt to appoint more than half the court. Quite a feat for a former president making his third attempt to win the popular vote.
HARRIS HAS, OF COURSE, ADDRESSED some of these issues, particularly in her convention acceptance speech. “Donald Trump handpicked members of the United States Supreme Court to take away reproductive freedom. And now he brags about it,” she said. And: “Consider the power he will have, especially after the United States Supreme Court just ruled that he would be immune from criminal prosecution. Just imagine Donald Trump with no guardrails.”
What she didn’t do was go on to say: We need to make sure he doesn’t get to name any more justices. The Senate’s job is to confirm qualified Supreme Court nominees. That’s why it’s so important to elect a Democratic Senate.
Maybe her acceptance speech was not the right place for that pitch. But how about rallies, fundraisers, TV interviews, and podcasts, where it would be appropriate to mention the need for a Democratic Senate—and House, for that matter? How about her 60 Minutes interview and the ABC debate with Trump? Or, even more relevant in terms of outreach, her talks with Alex Cooper on the Call Her Daddy podcast, the women of ABC’s The View, and the Latino audience at the Univision town hall? All of these would have been high-profile moments to briefly explain why any hope of bringing new perspectives to the Supreme Court hinges on Democrats winning close Senate races across the country.
Beyond the courts, there’s also the question of the Harris agenda. A Republican Senate and House would almost certainly ignore it, even though some of it is broadly popular nationally and could draw some bipartisan support in Congress—for instance, a federal law restoring the reproductive protections of Roe v. Wade; an enforceable ethics code and term limits for the Supreme Court; nationwide gun laws supported by U.S. majorities (universal background checks, red flag laws, and an assault weapons ban); maybe even some kind of law that says, in effect, that presidents are not kings above the law.
With Democratic majorities, Harris could also pursue immigration and border security fixes that would be iffy with a Republican-led Congress possibly still in thrall to Trump. The GOP has been blocking promising bipartisan efforts from 2014 (by the House GOP) right up to earlier this year (by Trump himself, though he holds no office).
Harris could also renew and try to pass into law the Deferred Action for Childhood Arrivals program for undocumented immigrants brought to the United States as children. President Barack Obama established the program via executive action in 2012, and it has been under legal siege ever since. These “Dreamers” have had bipartisan support.
Trump campaigned in 2016 on his “love” for the 800,000 Dreamers (now down to 500,000) and in 2017, his first year as president, said he still loved them—right after he ended their protection from deportation. He urged Congress to act, but when senators presented their bipartisan plan to him a few months later, including border security he had requested, he made his infamous “shithole countries” comment and rejected the deal.
If Trump wins, the Dreamers could end up swept up in his mass deportation plan. If he loses, a GOP Congress could still kill any immigration-border compromise on his command. Unless they’ve finally gotten past him by then.
I know some conservatives hope for a Harris presidency in order to end Trump’s hold on the GOP once and for all, and at the same time for a Republican Congress to block whatever she tries to do. I think that’s wrongheaded and would be counterproductive for the country.
Harris has already said she’d put a Republican in her cabinet and appoint a bipartisan council of policy advisers. She has pledged to be a president for all Americans, to uphold the rule of law, and if it comes to her desk, to sign the tough bipartisan border security law Trump tanked this year. She’s a stalwart on NATO and Ukraine, unlike Trump. And she is comfortable confronting and standing up to him, unlike the Senate Republicans who could not muster enough votes to convict Trump and bar him from future office in his 2021 impeachment trial, even after fearing for their lives during the January 6th Capitol attack.
Then there’s the outrage among legal experts and historians over the high court’s immunity ruling, and the ferocious political backlash to the ditching of Roe v. Wade, which has led to state abortion bans, hair-raising medical emergencies, and even preventable deaths. And now comes Cornyn suggesting that more justices like these would be wonderful.
Call me crazy, but a couple of new justices with different backgrounds seems like a politically healthy change for the court and the country. I won’t hold my breath waiting for a chorus of current or former Republicans, right or center right, to shout this out loud, but I suspect it would be a tonic as well for a GOP shackled to Trump, only Trump, and nothing but Trump.
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