The Last Desperate Act Of A Republican Tyranny Of The Minority

The Washington Post editorial states the obvious, correct position: There is only one principled vote on Amy Coney Barrett: No:

THE SENATE is poised to vote Monday on Judge Amy Coney Barrett’s nomination to the Supreme Court, a mere four weeks after President Trump nominated her and five weeks since Justice Ruth Bader Ginsburg died. There is only one reasonable vote for any senator who claims to put country over party: no.

Only one Republican, Sen. Susan Collins of Maine, who decidedly is not principled, will vote “no” today. There is not one principled Republican in the Senate.

We say this not primarily because of the hypocrisy Senate Majority Leader Mitch McConnell (R-Ky.) asks his caucus to embrace, though that is reason enough. Denying President Barack Obama’s 2016 nomination of Merrick Garland on the pretext that it was a presidential election year, only to ram through Judge Barrett a few weeks before the 2020 presidential election, would be an exercise in raw, unprincipled power that no one would soon forget. Her confirmation would reverberate for many years, poisoning the Senate and sapping the court’s credibility. Americans would fight about the makeup of the court rather than address the challenges the nation faces. Senators who ignore these facts, on the principle that Judge Barrett is smart and qualified, fool themselves into cooperating with what would be the single greatest act of judicial politicization in the modern era.

Yeah, about her qualifications: Amy Coney Barrett Is the Least Experienced Supreme Court Nominee in 30 years.

But even for senators who have accommodated themselves to Mr. McConnell’s situational ethics — Sen. Mitt Romney (R-Utah), for example, who joined the Senate after the Garland disgrace — there is a more urgent reason to delay: the potential for Judge Barrett’s confirmation to stain the nation’s choice of president. Mr. Trump has been clear why he wants Senate Republicans to rush through Judge Barrett: He seeks a friendly justice on the court who could help him win the election not by attracting the most votes but by legitimizing his claims that non-Trump votes are fraudulent. Judge Barrett has refused to commit to recusing herself in election-related cases, at one point bristling at Democratic senators for questioning her integrity when they asked for such a commitment.

I do question your integrity, Judge. If you cared about the integrity of the court you would not have agreed to participate in this illegitimate confirmation process. You would have insisted that your confirmation be placed on hold until after the election. Instead you are a willing and complicit participant in this sham process. That speaks volumes to your alleged character and integrity.

Moreover, Judge Barrett should have had no hesitation in committing to recusal in an election challenge, because if she knows the law she knows that it is required. In an op-ed in The Washington Post, J. Michael Luttig, who served on the U.S. Court of Appeals for the Fourth Circuit from 1991 to 2006, wrote that a little-known 2009 Supreme Court case almost certainly requires Judge Barrett to recuse herself from any case involving Trump’s re-election.

“But as Barrett must already understand, her decision was made exponentially more difficult by Caperton v. A.T. Massey Coal Co., an inartful and mischievous 5-to-4 case decided more than a decade ago by the court she will soon join,” Luttig wrote, adding that the case “would seem to apply squarely” to her recusal decision.

In a majority opinion penned by then-Justice Anthony Kennedy, the High Court reasoned that the mere appearance of bias was enough to require the justice’s recusal from the case.

“Based on its appraisal of the ‘psychological tendencies and human weakness’ of all of us, the majority concluded that the campaign spending had ‘significant[ly] and disproportionate[ly]’ influenced the judge’s election while the case was pending or imminent, resulting in a perceived serious risk that the judge was biased in favor of his contributor. ‘Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when — without the other parties’ consent — a man chooses the judge in his own cause,’” Luttig wrote. “The majority’s evident concern was over an influence — financial or not — that would be so overwhelming that a judge’s psychological temptations and human weaknesses would necessarily yield to that influence, whether the judge recognized it.”

Applying the case to Barrett’s circumstances, Luttig concluded that the decision appeared to apply with “proverbial vengeance.”

“Among these pressures are her nomination, due to Justice Ruth Bader Ginsburg’s death, little more than a month before the election, the unavoidable fact that Barrett would be deciding the political fate of the president who nominated her only weeks ago, and President Trump’s ill-timed calls for Barrett’s swift confirmation so that she can be seated in time to decide the election cases,” he wrote. “These bludgeoning pressures alone are at once singular and unprecedented, unsurpassed and quite possibly unsurpassable in their magnitude. By comparison, the pressures believed put on the West Virginia judge in Caperton pale.”

The recusal question is not about the nominee’s integrity but about the following scenario: Republicans rush Judge Barrett onto the court as the president insists he needs her to rule his way on election lawsuits; then Justice Barrett casts the deciding vote in a 5-to-4 ruling that invalidates late-arriving absentee ballots in Pennsylvania, throwing the election to Mr. Trump despite the fact that more people tried to vote for Democratic presidential nominee Joe Biden. The court’s reputation would be shattered, as would the public’s faith in democracy. Cementing a conservative majority on the court is not worth such a price.

This precise scenario is now in place thanks to anti-democratic Pennsylvania Republicans. Election law expert Rick Hasen explains, Understanding the Pennsylvania GOP Hail Mary Fighting the Extended Deadline for Receipt of Mailed Ballots, and the Awful Pressure that the GOP’s Petition Could Put on Soon-to-Be Justice Barrett. (The state Republican Party does not have standing to bring this appeal, but expect the state legislature or Republican state legislative leaders to join this appeal).

Mr. Trump has made clear that he intends to cry fraud if he loses the election and seek to enlist the courts in support. Confirming Judge Barrett before the election under such circumstances carries an unacceptable risk. There is no comparable downside to waiting until after the votes are counted to confirm her — unless her precipitous confirmation really is about tilting the election.

It should be noted that there are currently five Republican appointed conservative justices on the court, enough to carry out Trump’s election theft plot. The assumption that Chief Justice Roberts does not want his legacy tainted by an election theft, like Bush v. Gore, does not hold water with me. Justice Roberts has spent his entire legal career as the point man for GOP voter suppression, and we are seeing this in all the “shadow docket” pre-election decisions being made by this court without stating its reasons (other than to favor Republicans). Missing From Supreme Court’s Election Cases: Reasons for Its Rulings.

Ron Brownstein explains What the Rush to Confirm Amy Coney Barrett Is Really About:

Nothing better explains the Republican rush to confirm Amy Coney Barrett to the Supreme Court than the record crowds that thronged polling places for the first days of early voting this week in Georgia and Texas.

The historic number of Americans who stood in long lines to cast their ballot in cities from Atlanta to Houston symbolizes the diverse, urbanized Democratic coalition that will make it very difficult for the GOP to win majority support in elections through the 2020s. That hill will get only steeper as Millennials and Generation Z grow through the decade to become the largest generations in the electorate.

Every young conservative judge that the GOP has stacked onto the federal courts amounts to a sandbag against that rising demographic wave. Trump’s nominations to the Supreme Court of Brett Kavanaugh, Neil Gorsuch, and Barrett—whom a slim majority of Republican senators appears determined to seat by Election Day—represent the capstone of that strategy. As the nation’s growing racial and religious diversity limits the GOP’s prospects, filling the courts with conservatives constitutes what the Princeton University historian Sean Wilentz calls “the right-wing firewall” against a country evolving electorally away from the party.

This dynamic suggests that the 2020s could reprise earlier conflicts in American history, when a Court majority nominated and confirmed by the dominant party of a previous era systematically blocked the agenda of a newly emerging political majority—with explosive consequences. That happened as far back as the first years of the 19th century, when electoral dominance tipped from John Adams and the Federalists to Thomas Jefferson and his Democratic-Republican Party. At the time—and in language today’s Democrats would recognize—Jefferson complained that the Federalists “have retreated into the judiciary as a stronghold … the tenure of which renders it difficult to dislodge them.”

Some lag time between the composition of the courts, particularly the Supreme Court, and the country’s electoral balance is built into the constitutional system, with federal judges receiving lifetime appointments.

But just as in earlier eras, conflict is likely to be on tap for the 2020s once Barrett’s seemingly inevitable confirmation cements a 6–3 conservative majority. Because the oldest Republican-appointed justices, Clarence Thomas and Samuel Alito, are only 72 and 70, respectively, this majority might hold the last word on the nation’s laws for at least the next decade. The oldest Millennials may be in their 50s before any of these Republican justices step down from the high court.

Republicans have built this Supreme Court majority over the past 30 years even as Democrats have consistently won more votes. If Joe Biden takes the popular vote in November, Democrats will have captured the most votes in seven of the past eight presidential elections. No party has done that since the formation of the modern party system in 1828. Yet Republicans have controlled the White House, and thus the right to nominate Supreme Court justices, for 12 of the past 28 years.

As a result of the anti-democratic Electoral College system, George W. Bush appointed two justices and Donald Trump will have appointed three justices. Neither won a majority of the popular vote. (Justice Clarence Thomas was appointed by George H. W. Bush). A constitutional amendment to replace the anti-democratic Electoral College with a popular vote election for president – as we do for every other election – is long overdue. The amendment must be approved and sent to the states next year. In addition, the National Popular Vote Interstate Compact (NPVIC) needs to be enacted by Democratic controlled state legislatures.

The pattern in the Senate is similar. Boosted by their dominance of smaller states between the coasts, Republicans have controlled the Senate for 22 of the 40 years since 1980. But according to calculations shared with me by Lee Drutman of the centrist New America think tank, if you assign half of each state’s population to each senator, the GOP has represented a majority of the American public for only one two-year period during that span: 1997 to 1998. Today, according to Drutman’s figures, the 47 Democratic senators represent almost 169 million people, while the 53 Republican senators represent about 158 million. Measured by votes, the disparity is even more glaring: The current Democratic senators won about 14 million more votes (69 million) than the Republican incumbents (55 million), according to calculations by Molly Reynolds, a senior fellow in governance studies at the Brookings Institution.

These numbers will become even more pronounced after the November 3 election.

The result is a Republican Supreme Court majority that, to an unprecedented extent, embodies minority rule. Assuming Barrett is confirmed, five of the six sitting Republican justices will have been appointed by GOP presidents who initially lost the popular vote. (George W. Bush, like Trump, won the Electoral College and lost the popular vote in his first election.) And all three of Trump’s nominees will have been confirmed by senators who represented less than half of the American public. The same is true for Thomas, who was nominated by George H. W. Bush.

As the party is now constituted, the GOP’s chances of winning popular majorities in presidential elections—or representing most Americans in the Senate—will probably be even lower in the coming decade than they’ve been in the past few. Trump has relentlessly targeted the GOP on the priorities and resentments of non-college-educated, Christian, and rural white voters—groups whose numbers are either stagnant or shrinking.

Meanwhile, the key groups that favor Democrats—such as college-educated white voters, people of color, and adults who don’t identify with any religious tradition—are growing. Generational transition is accelerating all of these changes. Millennials were the most diverse generation in American history, but Generation Z is more diverse still. The unnamed generation younger than Gen Z is the first in American history in which people of color compose the majority, according to recent calculations by the Brookings Institution demographer William Frey.

In November, for the first time, the diverse generations born after 1981—Millennials and Gen Zers—will equal the preponderantly white generations born before 1964 as a percentage of eligible voters, Frey calculates. By 2024, those younger generations will almost certainly exceed them as a share of actual voters, with the gap widening quickly after that. Figures provided to me by Frey on the racial composition of the millions of young people who have turned 18 since the 2016 election offer a preview of what’s coming: Young people of color make up about 70 percent of those newly eligible voters in California and Nevada, two-thirds in Texas, three-fifths in Arizona, and about 55 percent in Georgia, Florida, New York, and North Carolina.

It’s not hard to see a collision ahead between a conservative Supreme Court majority and the priorities of those younger Americans, including climate change, racial equity, voting rights, gun control, and protections for same-sex couples. “This focus on judgeships that [Senate Majority Leader Mitch] McConnell has put in place is really the only way” that conservatives can see of “guaranteeing their ideological priorities,” Alvin Tillery, the director of Northwestern University’s Center for the Study of Diversity and Democracy, told me.

Brownstein then provides a history lesson about how “America has been here before.”

This is how the shrinking white Republican minority sabotages the emerging diverse Democratic majority. It cannot hold against a rising tide, but it will lead to a difficult transition period until the old ways are swept away by a new generation.

1 thought on “The Last Desperate Act Of A Republican Tyranny Of The Minority”

  1. Jamie Crooks and Samir Deger-Sen are lawyers who clerked for Justice Anthony Kennedy, a lifelong conservative appointed to the Supreme Court by President Ronald Reagan. In an op-ed at the New York Times they write, “We Were Clerks at the Supreme Court. Its Legitimacy Is Now in Question.”,

    We urge the Senate not to confirm Judge Amy Coney Barrett or any nominee until after the presidential election. Rushing through a confirmation with an election underway threatens the very legitimacy of the court.

    “How is the court doing?” Justice Kennedy’s question revealed his understanding of a profound but often overlooked truth: The court’s influence extends only as far as its perceived legitimacy. As Alexander Hamilton put it, the judiciary “has no influence over either sword or the purse.” If the court wants the people to obey its rulings, it must depend on “neither force nor will, but merely judgment.” In other words, Supreme Court pronouncements are a dead letter unless the public accepts them as the law.

    That fragile but crucial public acceptance was hard won over decades of compromises within and between each branch of government. But if Senate Republicans hastily confirm Judge Barrett in the middle of an election, when a clear majority of Americans would prefer that Congress focus on the nation’s economic recovery, that earned legitimacy will be put in jeopardy.

    With Judge Merrick Garland denied even a hearing by Republicans after his nomination by President Barack Obama, and now the rush by those same Republicans to confirm Judge Barrett, the court’s very composition will be seen as a product of the most brazen kind of politics. We fear its decisions will be seen that way too.

    [O]ur concerns run deeper — that regardless of how or why Justice Barrett would vote on the momentous issues that would come before her, the court’s decisions won’t be accepted.

    We worry that a large swath of the nation, told a Democrat can’t fill a vacancy in an election year but a Republican can, will dismiss the court as yet another partisan body. And we worry that if our children are asked, years from now, “How is the court doing?” their answer will turn on which politicians last got their hands on it, and not the reasoning behind the court’s judgments.

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