I will get to the judicial temperament and record of Judge Amy Coney Barrett, the Supreme Court nominee imposed on Donald Trump by the Federalist Society and Judicial Action Network, in another post.

Right now I want to focus on process.


Let’s be clear: no president, and no political party, has ever sought to nominate and confirm a Supreme Court nominee while votes are being cast during a presidential election. While the Constitution is silent on this matter, the long-standing norms and unwritten rules of the U.S. Senate, as well as an abiding commitment to honor the democratic process of fair and free elections and respecting the will of the voters has always inhibited such an abuse of power by past generations of American politicians.

“The Enemy of The People,” Mitch McConnell, and his radical authoritarian Republicans are demonstrating that they do not feel bound by such quaint notions of democracy and are openly contemptuous of American voters, beginning with their blatant power grab for a Supreme Court seat that President Trump and Senate leaders are openly declaring is part of their plan to contest the results of an election that they expect to lose, and to set aside the will of the voters in a fair and free election in favor of having the U.S. Supreme Court effectively decide the election by throwing the election into the House of Representatives.

I am stunned that every one of these Republicans has not been frog-marched out of their offices by law enforcement and charged with sedition for plotting against the United States.

The New York Times notes, “In order to achieve a new 6-3 conservative majority on the court, Republicans are poised to defy a clear majority of voters who have indicated in polls that they want the winner of the election to pick a nominee for Justice Ruth Bader Ginsburg’s seat.”

  • According to the CNN poll conducted by SSRS: 59% say the winner of the upcoming presidential election should choose the person to fill Ginsburg’s seat, including 97% of Democrats, 59% of independents and 17% of Republicans.
  • According to the Washington Post-ABC News poll: 57 percent say filling Ginsburg’s seat should be left to the winner of the presidential election and a Senate vote next year, including 90% of Democrats, 61% of independents and 16% of Republicans.

Republicans are openly contemptuous of the large majority of Americans who want to allow the president elected in  November to nominate a Supreme Court justice next year. Republicans only care about their minority base voters, who are also contemptuous of the majority of Americans. Political power is the only guiding principle of the Republican Party in a tyranny of the minority.

The editorial board at USA Today writes, After Donald Trump nominates Amy Coney Barrett, Senate now must ask these questions (excerpt):

It is particularly egregious that an institution once known as the world’s greatest deliberative body would attempt to rush through a Supreme Court nomination, even as it has been unable to pass another relief bill for the millions of Americans suffering because of the coronavirus pandemic.

Supreme Court confirmations typically take time, and for good reason. Justices are arguably the nine most powerful people in government behind the president. They can serve for the rest of their lives, will never face voters, and routinely rule on deeply personal and immensely political matters.

* * *

For these reasons, it is important that the Senate asks a number of threshold questions before it even delves into the particulars of Judge Barrett, 48, who’s serving on the 7th Circuit Court of Appeals based in Chicago and whom Trump described as having “unsurpassed” qualifications.

First among the questions: Is it wise to pursue a heated confirmation fight just 38 days from an election? This is the closest nomination ever made to a U.S. presidential election. The prior record was Aug. 16, 1852, and the Senate did not act on that nomination.

Another question is whether it is possible to do the necessary due diligence on any candidate for the high court, one who could serve for decades, at the breakneck speed proposed by Senate Republicans, who are said to be eyeing a late-October confirmation vote.

Note: Republican senators have made it clear that they have abdicated their “advice and consent” role, and have no interest in doing any due diligence. They all committed to vote for any “nominee to be named” by Trump, before a nominee was named. Being a mere rubber stamp is not the role of a senator.

Most important, is it fair for Republicans to hold open a vacancy for the better part of a year in 2016, when a Democrat was president — citing the pending presidential election as a rationale — and then do a 180-degree turn when a Republican makes a nomination?

Four years ago, Republicans were adamant in their determination to present their actions as principled. Senate Majority Leader Mitch McConnell said in a USA TODAY opinion piece that the Senate should hold up action on the nomination of Merrick Garland because “the American people deserve a voice in such a momentous decision.” Never mind that it was eight months before the election, and that Garland had sterling credentials.

Sen. Charles Grassley, of Iowa, then the chairman of the Senate Judiciary Committee, said similar things. And Sen. Lindsey Graham, of South Carolina, who was on the committee then and is now its chairman, was even more unequivocal. “I want you to use my words against me,” he said. “If there’s a Republican president (elected) in  2016 and a vacancy occurs in the last year of the first term, you can say: ‘Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.’ ”

Senator, we’re using your words against you.

The answer to all of these questions — whether it is wise to have a confirmation battle in the home stretch of a critical presidential election, whether there is enough time before the election to give the choice sufficient scrutiny, and whether Republicans in charge of the Senate have any high ground to stand on — is no.

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The American people ought to be able to look at their courts as autonomous arbiters of justice, not an extension of one party’s political apparatus. They ought to be able to see the system for filling vacancies as at least fair.

Attempting to ram through the nomination of Judge Barrett, after refusing to even consider an eminently qualified pick made by then-President Barack Obama, is a good way to undermine America’s faith in its courts.

Even more contemptuous of the voters is the reason why Republicans are trying to rush through this Supreme Court nomination. President Trump and Senate leaders believe they need nine justices on the Supreme Court to break any tie vote to decide the election.

President Trump and Republicans plan to contest the results of an election they expect to lose, and use the federal courts to cause chaos in the Electoral College to throw the election into the House of Representatives, setting aside the popular will of the voters.

Senator Lindsey Graham (R-SC) says, according to him, no American needs to worry about a peaceful transfer of power. Trump Ally Lindsey Graham Says The Conservative SCOTUS Will Decide Election:

People wonder about the peaceful transfer of power. I can assure you, it will be peaceful. I promise you as a Republican that the [Supreme] Court will decide, and if Republicans lose, we’ll accept the result.”

The Supreme Court does not decide elections. The voters do.

At a Pennsylvania rally, Trump said he’d have an edge if the 2020 race were decided by Congress:

President Trump told supporters on Saturday night that he hoped any dispute over the vote tally would not have to be decided by Congress — but that he would have an advantage if it did.

“I don’t want to end up in the Supreme Court and I don’t want to go back to Congress either, even though we have an advantage if we go back to Congress,” Mr. Trump said at a rally in Middletown, Pa. “Does everyone understand that? I think it’s 26 to 22 or something, because it’s counted as one vote per state. So we actually have an advantage.

Mr. Trump appeared to be referring to what is known as a contingent election, in which the House of Representatives chooses the next president if no candidate wins an absolute majority of votes in the Electoral College. In that scenario, each state’s House delegation is given one vote, with 26 votes required to win. Mr. Trump was correct that Republicans currently control 26 state delegations and Democrats 22, with two effectively tied — although the vote occurs after a new Congress is seated in early January, so those totals could change. (The Senate would separately choose the vice president.)

Mr. Trump is also hoping that a pre-election Senate confirmation of his choice for the Supreme Court, Judge Amy Coney Barrett, will guarantee him a conservative majority on the high court in the event that it decides the outcome, as it did in 2000.

Got that? Republicans are being openly transparent about their plans to steal an election.  They have been plotting this for over a year. POLITICO reports, Trump readies thousands of attorneys for election fight:

A year before President Donald Trump alarmed Americans with talk of disputing elections last week, his team started building a massive legal network to do just that.

Dozens of lawyers from three major law firms have been hired. Thousands of volunteer attorneys and poll watchers across the country have been recruited. Republicans are preparing prewritten legal pleadings that can be hurried to the courthouse the day after the election, as wrangling begins over close results and a crush of mail-in ballots. Attorneys from non-battleground states, including California, New York and Illinois, are being dispatched to more competitive areas and trained on local election laws.

A 20-person team of lawyers oversees the strategy, which is mainly focused on the election process in the 17 key states the Trump campaign is targeting, like Pennsylvania, Wisconsin and Michigan.

In total, it means the Republican Party will have thousands of people on hand to shape every element of voting — both on Election Day and in the days after.

It’s a massive undertaking — one the RNC calls its largest election-year legal effort ever. And it’s one that could determine the winner of the pandemic-beset 2020 election. Both political parties are bracing for the Nov. 3 election to spill over into the days and perhaps weeks after Election Day, given the drawn-out process of counting what’s expected to be a historic number of mail-in votes. Since Republicans and Democrats vehemently disagree over how — and when — those ballots should be counted, the court system might be the ultimate arbiter.

“We’ve been hard at work on our planning and strategy for quite some time,” said Justin Riemer, chief counsel at the Republican National Committee, one of the leaders of the effort. “We will spend whatever it takes to make sure the election is conducted orderly and that we push back on the Democrats’ litigation to strike down various safeguards on the election process.”

The RNC’s venture is being coordinated with the Trump campaign and the committees supporting GOP Senate and House candidates. The organization had already been planning to erect a robust legal apparatus for 2020, but stepped up its efforts when the coronavirus outbreak prompted many states to expand voting by mail, alter deadlines and send out ballots and ballot applications to all registered voters.

With both Republicans and Democrats preparing for battle, election officials expect a more chaotic aftermath this Election Day than even two decades ago, when the race between George W. Bush and Al Gore didn’t end until the Supreme Court weighed in more than a month later.

* * *

Democrats have launched their own gargantuan effort, doubling their efforts since 2016. They’ve amassed a team to educate voters, respond to charges of voter suppression and counter foreign interference and misinformation, according to the Biden campaign.

The effort is being led by Dana Remus, Biden’s general counsel, and Bob Bauer, a former White House counsel during the Obama administration who joined the campaign full-time this summer. It includes a national team for special litigation spearheaded by former solicitors general Donald Verrilli and Walter Dellinger, as well as Marc Elias, a nationally recognized Democratic elections lawyer, according to the campaign. Former Attorney General Eric Holder also is involved.

“The Biden campaign has assembled the biggest voter protection program in history to ensure the election runs smoothly and to combat any attempt by Donald Trump to create fear and confusion with our voting system, or interfere in the democratic process,” Biden campaign spokesperson Michael Gwin said.

Trump has spent months railing against mail-in voting as the pandemic raged and his poll numbers dropped. Last week, he said the Supreme Court may be required to hear Election Day disputes and declined repeatedly to commit to accept the results if he lost the election. “This is a disaster waiting to happen,” Trump said at a campaign rally in Newport News, Va., Friday night.

* * *

Even before Election Day, Republicans had pledged to spend $20 million to challenge voting rule changes resulting from the pandemic. They have had successes in some lawsuits, challenging everything from the location and presence of ballot drop boxes to whether third parties can collect and submit bundles of absentee ballots. Still, the suits have failed to stop the 10 states that are planning to send ballots to all voters — Trump’s main complaint. Many cases are ongoing.

The Supreme Court nomination is but one piece of the puzzle in the GOP plot to steal the election by using the federal courts, packed with judges Trump appointed, to set aside the popular will of the voters and to throw the election into the House of Representatives where Trump hopes to still have an advantage come January.

The voters can retaliate against this evil GOP plot to steal the election by voting these Republicans out of office, and electing more Democrats to the House and Senate en masse in a blue wave tsunami.

Remember: None of this would remotely be a possibility but for the anti-democratic Electoral College. With a popular vote election of the president, like every other election in the United States and the free world, there would be no possibility of this election chicanery. It’s long past time that we amend the Constitution to rid us of the Electoral College, the last remaining vestige of slavery in our Constitution.