Joe Biden's one chance to save America Packing the court would tear the country apart. Why not just give in?

Not quite giving in: I have in mind one of those moves in martial arts where an opponent comes at you but ends up on the mat, propelled by their own momentum: let’s hear a big Scranton plaid-shirt howdy to Jiu Jitsu Joe.

It would take some heroic political footwork.

First stop: the Supreme Court. And an acceptance that Amy Coney Barrett, Donald Trump’s well qualified choice, should become a Justice before November’s presidential election. I know, I know. It’s not going to be easy.

Yes, the court matters. I remember it mattering to me on a sunny Washington DC day in 2008 when a set of rules that had been hampering my rights were swept away overnight. Up until 2008 we had to keep our larger guns “unloaded and disassembled” and hand guns were forbidden altogether in the city.

No longer. The handgun ban went and the bigger weapons could be waved about, or at least kept ready to fire. And while we had never seen the need for a gun, even one kept in a cupboard (we had a flimsy Yale lock on the door and no fear of any kind of crime in our white picket fenced bliss), we did have neighbours who were armed and in whose homes, where my kids played, this would mean a different set of rules.

It really mattered, this change. And it came not from the local DC government. Not from the House of Representatives or the mighty Senate, nor from the White House. It came from the Supreme Court and a decision the justices made in a case called District of Colombia V Heller. It changed law and the practice of law across the USA.

And never mind my gun freedom: if you are a poor woman in South Dakota and you want an abortion, hell yes, the court matters to you.

So far so obvious. The Court has an important role in American life and always has had. I am not denying that. But here’s the conundrum which is lost in the row about whether Amy Coney Barrett should become a Justice before November’s presidential election. The court generally sways in the direction of the zeitgeist. It might occasionally push a little — as with the desegregation of education — or perhaps hold back against the tide as with the more recent granting of the right of corporations to spend what they like on political campaigns, something many middle-of-the-road Americans are queasy about; but the court is a living organism, not a rock. It breathes. Its justices, often to the intense annoyance of those who appoint them, feel themselves to be more than placemen and women.

Might the Democrats be wiser to let this one go then?  Not just to let it go. Might it not be a better idea to approve Amy Coney Barrett and acknowledge that the reason she is being appointed so quickly and easily by the Republicans is that they themselves — the Democrats — blew up the gentle old system? For they were the ones who got rid of the Mr Smith Goes to Washington-style filibuster that had governed the behaviour of the Senate.

We hear much about Donald Trump’s radical contempt for the system, the conventions of American government, and in truth he is not the most collegiate of Presidents. But the blowing up of the Senate was not done by him. That happened back in 2013, when the then majority leader, Harry Reid, an amiable but steely Mormon, did the deed. Frustrated by the Republicans holding up some lower level judicial appointments of president Obama, Harry Reid reached for the nuclear option button and pressed it.

“The American people believe the Senate is broken, and I believe the American people are right,” he said, adding: “It’s time to get the Senate working again.”

As the Washington Post put it at the time:

“In the long term, the rule change represents a substantial power shift in a chamber that for more than two centuries has prided itself on affording more rights to the minority party than any other legislative body in the world. Now, a president whose party holds the majority in the Senate is virtually assured of having his nominees approved, with far less opportunity for political obstruction.”

Too right. Supreme Court nominees were not included in the 2013 change; but later, when the Republicans were in charge, they did what people predicted they would do — and changed the rules for them too. Again, some Democrats thought it a mistake to force the issue. Neil Gorsuch, a conservative but highly qualified judge had been named by Trump to replace Antonin Scalia, the Supreme Court justice who died in 2016. Gorsuch’s arrival would not change the balance of the court; in fact, he was probably more moderate than the man he replaced.

But the Democrats decided to filibuster, one Senator saying he would do “anything in his power” to stop Gorsuch. So the Republicans, now in charge in the Senate, simply ditched the filibuster for the Supreme Court too. And the power that Senator thought he might wield went up in smoke.

So here we are: the fallout, the damage from the ending of the filibuster, is with us still. It was a decision by the Democrats that led directly to the likely appointment of Amy Coney Barrett to the court.

Were they provoked? Hell, yes. The treatment of the Obama presidency by the Republican party was disrespectful to put it mildly. You could argue — almost all Democrats would — that the destruction of the norms of American political decorum come from the Right not the Left.

But here we are. All the pressure now is on the Biden administration – assuming it can ease its way gently into power – to tear the nation further apart. Pack the Supreme Court! Abolish the electoral college! Use majorities in the House of Representatives and the Senate (assuming it can be won back from GOP control) to release the pent-up frustration of millions of Americans and seize the nation from the Right.

It’s a view. But it’s a view that sees conservative Americans as lost to the wider cause and the nation, the essence of being American, lost with it.

What, instead, if President Biden pulled the most almighty political stunt in recent American history? What if he asked his Senate leader to allow the Republicans to filibuster once again (the rules can be changed, oddly, by majority vote). What if he agreed to give the Supreme Court a chance to work. What if he promised to respect its decisions and asked in return that it respect the rights of America to change gradually in the direction he favours?

It sounds so quaint as to be utterly barmy, I know. But it’s how America functioned for decades. Joe Biden remembers that and in his heart, I suspect he wants it much more than he wants free healthcare or a bigger minimum wage or higher taxes for the wealthy.

Perhaps it’s too late. Perhaps the old fellow is too creaky. But Jiu Jitsu Joe would be something to see.

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Justin Webb presents the Americast podcast and Today on Radio Four. His Panorama documentary “Trump the Sequel”, is available now on  Iplayer

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