Knockin' On Heaven's Door
How the looming threat of death spells disaster for more than just the deceased
(Carolyn Kaster, Pool/Getty Images)
In the first-ever Make Gentle newsletter, I laid out both the existence of the American Gerontocracy (rule by the elderly) and some of the problems with it. But in that post, I ignored what may be the most dangerous part of the American Gerontocracy if you want democrats to pass laws: Old people are more likely to die. As we reach the 6-month point in Biden’s presidency with only one major piece of legislation passed1 and only four of Biden’s judicial nominations it’s time to recognize that risk and respond with urgency.
A quick note before we begin: Obviously all of the hypothetical deaths I’m going to talk about today would be profoundly tragic for the individual, for their friends and families, and (mostly) for the country. But we can’t allow a discomfort with death or predisposition for politeness let us ignore the fact that American politics are a high-stakes game and political projects are greater than any one person.
The Precarious Senate
The most obviously gerontocratic body (average age 62.9 ), and also the one where its effects might matter the most is in the closely divided Senate, where even one death would hand control of the body back over to Mitch McConnell, and with that, the power to launch investigations, appoint chairs of the committees, confirm judicial nominees and bring bills to the floor for a vote.
There are lots of contemporary examples and near misses that should have made it extremely clear to Democrats that the loss of your majority can happen much faster than you expect. Take the summer of 2009, in which they lost their filibuster-proof majority after the tragic death of Ted Kennedy. In January of this year, 81-year-old Patrick Leahy was hospitalized, and democrats could have lost their majority after only holding it for 8 days.
The democratic party currently has 18 senators who are over the age of 802. There are currently 11 senators, who risk being replaced by a Republican governor in the event of their death3, and of those 11, all but two are over 60! The risk of losing the senate due to an untimely death is very real, and it is hanging like a knife over the democratic party’s agenda.
Stephen Breyer should retire
The most dangerous death that would result in the handing over of more and more power to a radical Republican party lies in the Supreme Court. Justice Stephen Breyer is 82 and if the event of his death occurs at a time when Democrats no longer have control of the senate there is no reason to believe Mitch McConnell would even hold a vote on a Biden nominee. Take what he said yesterday:
As bad as the 6-3 minority for liberal judges is right now, the only thing worse is a 6-2 or even 7-2 Supreme Court.
It’s time for Democrats to come to terms with the fact that Ruth Bader Ginsburg’s refusal to retire was a massive mistake, despite the fact that she was an extremely influential and inspirational lawyer and juror. There is simply no question that an Obama-appointed Justice who would sit on the bench for the next 50 years is better than the few years of dissent we received from RBG. Those dissents were great, but they are not a substitute for political power.
Following her death and replacement with Amy Coney Barrett, a women’s right to choose in danger, the entirety of Obamacare might be struck down, and Justice Gorsuch now has the votes to implement a crushing blow to federal regulations on issues like pollution, climate, and safety.
Republicans understand that what matters at the end of the day is which team has a majority. Maya Sen, a scholar of the Supreme Court from the Harvard Kennedy School recently appeared on the Vox podcast, The Weeds, where she said:
Among the conservatives, there's a sense … you are part of a bigger movement and you've been told that through your affiliation with something like the Federalist society and your networks and the politicians who have conversed with you about this. Like you have been informed that your role is part of something bigger. And I don't get the sense that that happens on the left as much.
Timed retirements among conservatives have proved to be resounding successes, like Justice Anthony Kennedy’s 2018 retirement where he was able to basically handpick his former clerk and successor, Brett Kavanaugh. It’s time for liberals to learn the lessons from these right-wing victories, to act more strategically in dealing with the court system. That process should begin with the retirement of Justice Breyer.
What can be done?
The unfortunate truth is that there is very little the Democratic party can currently do to mitigate this risk. Instead, what they need to do is act quickly. That means Justice Breyer needs to retire NOW so that the current senate can confirm Biden’s nominee. That means that the dead-end infrastructure talks need to end NOW so that the thin Democratic majority can pass an infrastructure plan through reconciliation while they still can.
In the long run, though, there are changes that can be made. First, more states should require a governor’s appointee to be of the same party as the senator who creates the vacancy (currently only 5 states have this provision). Additionally, democrats need to start recruiting, nominating, and electing younger politicians. The existential threat of death should not affect policy as much as it currently does. Plus, younger politicians have plenty of other positives too.
Yeah, yeah also the Endless Frontier Act
Jon Ossoff (34), Raphael Warnock (51), Elizabeth Warren (71), Ed Markey, (71), Jon Tester (64), Jeanne Shaheen (74), Maggie Hassan (63), Sherrod Brown (68), Patrick Leahy (81), Bernie Sanders (79), and Joe Manchin (73). (Kyrsten Sinema, Mark Kelly, Ben Cardin, and Chris Van Hollen are not at risk because Arizona and Maryland stipulate that the appointee must be a member of the same party as the senator who creates the vacancy.)
Phil Scott said he would fill Bernie Sander’s office with a Democrat-Affiliated Independent when there were rumors of a Sanders Cabinet official, but he has remained quiet about if Senator Leahy, who is 81, were to pass away