Before the president even got around to nominating Judge Amy Coney Barrett to replace the late Ruth Bader Ginsburg, the usual Kultur Kampf forces were manning their positions.
However, amidst the whirl and rush about Roe/Casey and the fate of Obamacare, one issue should be paramount as we enter the last five weeks of pre-election campaigning: the integrity and legitimacy of the election itself.
Whatever one thinks of Judge Barrett, she is being elevated by a president who has made it abundantly clear he intends to lie and litigate his way into remaining in power against the will of the American people. The only way we can be sure she will not help him do so is if she pledges to recuse herself from any litigation related to Election 2020. If she is unwilling to do so, her confirmation must be opposed.
In normal times, this need not be an issue. These are not normal times.
We have a president running for re-election who has repeatedly spread falsehoods about the legitimacy of voting by mail (Daily Beast via MSN [1]), even as he himself has voted by mail (NPR [2]). Just last week, his response to the question of whether or not he would accept defeat in the election was, “get rid of the ballots” (NBC [3]). Last but most, his chief justification for filling the empty seat on the Court was a claim that the Court – not the American people – will decide the election (CBS [4]):
President Trump on Wednesday predicted the Supreme Court will need nine justices to determine the outcome of the upcoming presidential election.
“I think this will end up in the Supreme Court. And I think it’s very important we have nine justices,” Mr. Trump said Wednesday, speaking to state attorneys general and reporters about the November race during a meeting on social media.
The Senate, the president said, will need to confirm his nominee in case a tie needs to be broken.
“But I think it’s better if you go before the election because I think this — this scam that the Democrats are pulling — it’s a scam, the scam will be before the United States Supreme Court,” the president continued. “And I think having a 4-4 situation is not a good situation, if you get that. I don’t know that you’d get that. I think it should be 8-nothing or 9-nothing. But just in case it would be more political than it should be, I think it’s very important to have a ninth judge,” Mr. Trump said.
In this environment – given what we already know about Trump’s voracious appetite for more corrupting power – the benefit of the doubt that might usually come with a Court nominee is an unaffordable luxury.
Republicans would prefer a battle over Barrett’s personal faith (and Democrats may very well fall into that trap).
Democrats would prefer an argument over Obamacare.
Both parties seem to be convinced they can benefit from the issue of abortion – never mind that reversing Roe is still unlikely to happen and unlikely to have a great impact [5] on the number of abortions performed (none other than Barrett herself noted, “I think supporting poor, single mothers would be the best way to reduce the number of abortions in the U.S.” – The Observer [6]). As important as the latter two issues are, I think they pale in comparison to making sure our democracy is healthy enough to address any issues …
… and a Supreme Court with a third appointee from a president using authoritarian tactics and rhetoric to remain in office makes democracy weaker rather than stronger.
Barrett must say she will not make matters worse. She must pledge to recuse herself from any and all cases related to the upcoming election. If she won’t do that (and I’d be surprised if she did), her confirmation would damage our democracy and must be opposed.