“The backlash will be fierce”

This article is liberal commentary.

The Republican argument for replacing Ruth Bader Ginsburg with a Trump appointee — which is fair if he’s reelected, but not otherwise — is that the Constitution allows it. But the fact you can do something doesn’t mean you should do it or that it’s wise to do it. Such an action would be utterly unscrupulous, a raw exercise of power that would destroy whatever comity remains in American politics. More importantly, it would destabilize our democracy.

Scott Lemieux, a political science lecturer at the University of Washington, in an essay for Think (read it here), after emphasizing the Supreme Court’s key role in our system of checks and balances, pointed out that a court “representing an entrenched, unpopular minority faction” which refused to allow the majority party to govern “would be neither democratically legitimate nor politically stable.” It will be one strain too many that “Trump has placed on American democracy” and “the Supreme Court as we know it is unlikely to survive” the inevitable backlash.

He acknowledges that Trump might be reelected, but if he loses the popular vote (as seems certain), that would mean “Democrats will have won the popular vote in seven out of the last eight presidential elections.” And if a Trump appointee gives Republicans a 6-3 majority on the Supreme Court that’s “impossible for Democrats to displace through … the results of future elections,” especially one that blocks their efforts to govern, well, they’ll have to do something about it.

So while the Constitution allows it, or shall we say doesn’t prevent it, “the problem Republicans will face” is “the same can be said” for what Democrats can and likely will do “to restore the balance of American democracy, including eliminating the legislative filibuster to stop Republican obstructionism or granting statehood to Washington, D.C., and Puerto Rico.”

Let’s say Republicans cast aside the last vestiges of gentlemen’s rules and play hardball. In that case, Lemieux says, Democrats should respond “in kind” because “hardball is a much better alternative for the people they represent than the Supreme Court being under the decades-long control of a political faction that has given up even trying to appeal to the majority of the American people.”

Last weekend, Minority Leader Chuck Schumer said “nothing is off the table” if Trump and McConnell forge ahead and the Republican Senate goes along. If the Democrats win the White House and Senate in November, this is the price they could pay:

  • Eliminate the filibuster, ending Republican veto power over Democratic legislation
  • Statehood for D.C. and Puerto Rico, giving Democrats 4 more senators
  • Obtain a Supreme Court majority by expanding it
  • An electoral college workaround
  • New voting rights laws

The end result will be to move America closer to pure democracy, which is the last thing Republicans want.

There are still Democrats who are reluctant to enact some or all of those measures, but their reluctance — and public opposition — could evaporate if Republicans proceed with what is seen as an undemocratic power grab. Trump and McConnell surely understand this, so they must have a plan up their sleeves. This most likely involves using the judges they’ve already appointed to rob the Democrats of an election victory. They’ve been laying the groundwork; Trump tells his audiences the only way Biden can win is by cheating, and he’s already talking about using judges to interfere in the election results.

The fight will be over mail ballots. Recent polls show Biden with a 3.7-to-1 lead among absentee voters. He’s had a steady 9-point lead in national polls. The only way to overcome that is by suppressing the mail-in vote. Because of Covid-19, a record number of voters will vote by mail, and election officials in several states are warning it could take up to a week to count them and learn the results.

Trump says he’s “counting on the federal court system” to ensure a winner is declared on November 3 (see story here), which would violate existing state election laws, leave millions of ballots uncounted (which is the idea), and constitute a brazen interference in the election by partisan judges, undermining the legitimacy of the federal courts. In such event, the Democrats’ last line of defense would be refusing to certify the election in the House of Representatives. Where things would go from there is hard to say, but I suspect more than just the Supreme Court wouldn’t survive. It could incinerate federal judicial authority.

Beyond that, at some point, a government loses legitimacy and the consent of the governed. We’ve seen that happen first on the Republican side (with less justification), but there’s no reason why it couldn’t spread to Democrats, too. For now, the latter are still willing to put up with a system that gives disproportionate power to the minority party. But that could change if they come to believe the system isn’t just tilted but rigged, and they’re being ruled not by unfairly won power, but by stolen power. If it becomes serious enough, the American experiment could unravel, with unforeseeable consequences.

Prevention is the best cure. A solid majority of Americans want Trump to leave. That’s clear. But for this to happen, they must turn out and vote. It won’t be enough for Biden to eke out a thin popular majority; to overcome Trump’s cynical machinations, he needs such an overwhelming victory that the election results will be indisputable even by the Wizard of Oz and the legions of gullibles and wishful thinkers who foolishly hang on his lying words and would follow him to the ends of the earth — and the end of our democracy.

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  1. Mark Adams #

    Only it has been done nine times before. It is in fact the norm for a President to nominate and get his nominee voted onto the court when his or hers party is in control of the Senate. Whether it is done before or after the election is really not relevant, other than giving a couple of Senators some political cover, who will then vote in the dead duck session of Congress.

    Chief Justice Taney the author of the Dred Scott Decision died October 12, 1864. Lincoln waited until after the election and nominated Salmon Chase on December 12 and the Senate confirmed that same day.

    Puerto Rico should be a state, perhaps the Republicans can do well in Guam perhaps it should be a state as well. As far as Washington DC I think the state of Maryland may have some objections, but Congress could arguable make DC a state. Or the five boroughs of New York city, a city that often acts like a state.

    We have had lopsided courts in the past, and most judges are generally conservative. Certain norms in the federal judiciary demand this. Most of the threats are just that, mere threats and a lot of wind. If the Democrats take power and stuff the court then the Republicans may do the same when they have control. Create new states well the Republicans can too, maybe there is more to all that purchasing Greenland than has come to light.
    The make up of jurists on the Supreme court has little to do with checks and balances. The founders assumed any group of judges would work in the interests of the courts as one of the three branches of government and would be independent of the Congress and Executive branches to operate.

    In any case this particular issue is laid out in the constitution. The next justice of the Supreme Court will be picked by President Trump. And all this hoopla actually helps the occupant of the office of President. Unless they pick a total dud. IN which case another nominee will be picked.

    And because the Democrats picked Biden as their nominee this is a losing issue for Biden due to past statements, politics and trying to avoid the issue by not putting out his possible picks. He is not going to be able to say in any believable way that if he were elected and the Democrats control the Senate in four years and say Clarence Thomas dies he is not going to nominate a replacement and expect a Democratic Senate to do a vote and place his candidate on the court. He may say something that the people should get to decide, but everyone will know he is lying. All this makes for a lively debate. Either Biden admits Democrats would do exactly what the Republicans will do in this situation, or add a nail to his political coffin. I think once the nominee is announced the Democrats are going to have difficulties in keeping the mud they are slinging to come back right at them.

  2. Roger Rabbit #

    You really think voters will hold Biden to his past statements when every Republican is flip-flopping on theirs? This will only deepen distrust of all politicians. But the GOP deserves to be distrusted more.