Now it’s time for Democrats to pick it up and slap them in the face with it.
Amy Coney Barrett was sworn in to the Supreme Court last night in a blatantly partisan ceremony at the White House, something which until Trump, simply wasn’t done. They sealed their fate. There is going to be major judicial reform now and they aren’t going to like it.
Here’s a list from the Jay Michaelson of The Daily Beast of everything that is grotesquely undemocratic, irresponsible and illegitimate about this appointment:
1. Hypocrisy: President Barack Obama nominated Judge Merrick Garland on March 16, 2016. Republicans said that was too close to an election to confirm a new justice. Some even promised not to do so in 2020. Justice Barrett was nominated on September 29.
2. Disrespect: The actual, for-real dying wish of the late Justice Ruth Bader Ginsburg was that she not be replaced until after the election. Barrett’s nomination was announced three days after Ginsburg died, before she had even been buried.
3. Haste: In order to ram through their nominee before the election—it was the fastest nomination process since 1975—Republicans cut corners everywhere, with little investigation, a perfunctory and incomplete questionnaire, and a bogus process.
4. Magical Thinking: Because of the COVID-19 pandemic having spread to the Senate floor, the Senate was actually not in session while the Barrett confirmation hearings took place. How were senators both in session and not in session at the same time? Magic, I guess.
5. Anti-Life: Speaking of the pandemic, two members of the Judiciary Committee had COVID-19 during the confirmation process. One attended a hearing in person. Barrett’s nomination party was a super-spreader event. So much for “pro-life.” Meanwhile, the Senate did nothing to pass additional Coronavirus relief, because Majority Leader Mitch McConnell worried that however it went, the vote might hurt Republicans’ reelection chances.
6. Evasion: More than any other nominee in history, Justice Barrett dodged every question of any substance. She said nothing about Obamacare, abortion, even the peaceful transition of power.
7. Denial: Despite Trump and the Republican platform explicitly promising that he would appoint judges to overturn Obamacare and Roe v. Wade, Republican senators, and Justice Barrett, clutched their pearls in astonishment that anyone would ever suggest such a thing.
8. Puppet Theater: Except for a brilliant half-hour lecture by Senator Sheldon Whitehouse, hardly anyone mentioned the dark-money-funded networks, staffed by religious extremists, that have now placed three justices on the Supreme Court (and dozens on other courts) and that often bring the conservative-activist cases that their handpicked justices then decide.
9. Anti-Democracy: Republican presidents have now placed 15 of the last 19 justices on the court, despite losing the popular vote in 6 of the last 7 presidential elections. The Republican majority in the Senate represents 15 million fewer people than the Democrat minority. Our system, designed in the 18th century, never anticipated this.
And most importantly:
10. Delegitimization: Despite the best efforts of Chief Justice John Roberts, the Supreme Court has again lost legitimacy in the eyes of the American public. All three Trump justices are under a cloud: the first is in a seat stolen from President Obama; the second was pushed through despite serious rape allegations, which have only been further corroborated since his confirmation; and the third was appointed to the Court with all the seriousness and deliberation of a Las Vegas wedding.
We know what the agenda is. They are going to gut every bit of progress that’s been made in the last century and block all progress going forward. And they are going to be doing this from a position of a minority of the country.
That’s what McConnell and the Federalist Society set out to do. And as McConnell said this week, it’s going to last a very long time — unless the Democrats act.
Michelson lays out the immediate dangers:
In the short term, Justice Barrett may rule on two pending election challenges from Republicans, who are trying to stop as many people from voting as they can. Just as the Senate was voting on her confirmation, Justice Brett Kavanaugh authored an opinion on a third one, throwing out an extended deadline for mail-in ballots in Wisconsin.
For good measure, Justice Kavanaugh cited Bush v. Gore, which he helped to litigate in 2000, for the principle that the Supreme Court can overturn state courts’ election-law decisions if need be. Because look how well that turned out the last time.
A similar case is pending from Pennsylvania after an earlier 4-4 deadlock, which Justice Barrett may now break. That’s right, Justice Barrett’s first act may be to make it harder for people to vote.
The Supreme Court’s ultra-conservative supermajority doesn’t think like America, doesn’t look like America (racially, religiously, or in countless other ways), and doesn’t interpret the Constitution in a way that makes sense in America. (“Originalism” is preposterously selective–to take but one example, there’s no right to corporate personhood, or even corporations existing, in the Constitution, because the Founders generally hated corporations and thought they shouldn’t exist. But try telling that to the “Originalists” on the Court.)
But then again, neither do Republicans. The Grand Old Party is looking especially Old these days, is likely to lose big in next week’s election, and if Republicans don’t find a way to broaden their appeal beyond Trump’s rabid base of non-college-educated, mostly-older white men, together with their wives and assorted religious extremists, they’re going to lose even bigger in elections to come.
That’s true even if their hand-picked Court allows them to gerrymander, suppress the vote, and allow unlimited dark money to manipulate our elections. Which it has already been doing. It just might take a little longer.
The good news:
Fortunately, even moderate Democrats are now out for blood. After Garland/Gorsuch, Kavanaugh, and now Barrett, there is growing support for increasing the size of the Court, imposing term limits on justices, or both. (My own proposal: immediate term limits for all justices, which would create two immediate vacancies.)
No doubt, Republicans will cry that Democrats are threatening the legitimacy of the Supreme Court. They’re exactly wrong. In fact, structural change is the only way to restore it.
Look at that list again. After what they did, Democrats can no longer avoid the reality that they are going to have to use their power and use it ruthlessly. These people will stop at nothing.