Democrats’ failure to persuade the public and Republicans to suspend the nomination of now Justice Amy Coney Barrett has the potential to erode American democracy for generations.
On countless questions of constitutionality, life and death, and law and order, the Court’s 6-3 majority will enforce the preferences of an extreme minority. A tyranny of the minority will fundamentally alter the American Republic, diminish the rights of the majority, and pervert any remaining equal justice under the law.
Longtime Congressional scholar Norm Ornstein has provided the best advice to the Democratic Party at this juncture: “If Amy Coney Barrett goes on the Court and immediately votes for PA voter suppression, she should quickly be impeached. Trump asked her openly to act to tilt the scales of the election.”
If Barrett does indeed rule against the rights of voters in the days leading up to or during vote-counting — refusing to recuse herself from decisions that would clearly amount to a quid pro quo for Trump’s re-election — Ornstein’s suggestion is precisely the required hardball Dems need to play to delegitimize the extremist justice and preserve democracy.
By voting against the Pennsylvania Supreme Court and interfering in state’s electoral practices, Barrett’s rank duplicity will be unmistakable — as will the fraud of her purported conviction in federalism and state’s rights.
This is when Democrats need to pounce on her ethically and legally dubious approach — to serve the interests of the Republican Party rather than uphold the law — and make the argument they were right about not seating her. Any public support for the nominee-turned-justice will crumble. And while there will not be a 2-3 majority to convict in the Senate, Pelosi and House Democrats can swiftly impeach her.
It is on this basis that a potential Biden presidency and Democratic Senate will have leverage to add a Justice — a tenth Justice — to begin the process of balancing the Supreme Court. It would be politically palatable if Barrett’s appointment had enabled a plot to destroy the legitimacy of the election.
After a new Justice is added by a simple majority vote in Congress and sworn in, there can be more comprehensive study, as Biden has promised, of new plans for the Court: term limits, additional appointments, and recusal rules. But the Democrats need to recover — not in months and years, but immediately — from Barrett’s appointment. And they need to think about why they failed so catastrophically to stop it from happening in the first place.
As RBG’s vacancy and the Supreme Court nomination faded into the backdrop of the political campaign rather than magnifying into a defining issue, there was no impassioned argument from the Democratic Party to resonate.
Instead, there was an infamous hug from the Democrats’ Ranking Member of the Judiciary Committee, Dianne Feinstein. And there was something more alarming. The refusal of the Democrats to fight a political battle—too afraid of muddying the integrity of their pro-Biden and anti-Trump argument—was a stunning abdication of leadership.
During the confirmation hearing, Barrett’s refusal to acknowledge legal precedent made clear that she would like to revert America to jurisprudence of a prior decade— or, more likely, a prior century.
The Democrats chose to make their focus initially on the hypocrisy of a Republican election-year appointment. That fell largely on deaf ears. Then, they moved on more meaningfully to the immediate legal challenges of the Affordable Care Act, Roe v. Wade, and, to a lesser extent, the real potential to reverse marriage equality. Stripping healthcare during the pandemic may be a winning campaign issue for Biden — and make the demise of Trump — but it did nothing to convince the GOP or public that Barrett should be not seated on the High Court.
There were opportunities they simply ignored out of fear of backlash. For all her purported brilliance, Barrett failed to name one of the five freedoms (protest) enshrined in the First Amendment when asked directly by Senator Ben Sasse. If a Democrat-nominated judge made such a mistake, it would be disqualifying. He or she would not only be rejected but tarred and feathered in the public square. And that’s the way it should be — for any nominee. ACB is no RBG, or Supreme Court material, Democrats were afraid to allege.
They could and should have more perceptively revived the (Ted) Kennedy-esque argument that was leveled against failed extremist nominee Robert Bork. Because Barrett, like Bork, is a judge who will demolish the entirety of the Warren Court’s expansion of civil rights: One person, one vote; Miranda; Brown v. Board. The reason that Kennedy’s speech stymied Bork’s nomination is that it forewarned clearly the dystopia and eradication of rights his appointment would mean for America.
The Republicans point to the Democrats’ argument against Bork—not his profound disrespect for the rights of Americans—as the unforgivable act that has precipitated their revenge — to pack the Court with extremist ideologues who would deny the public rights. In fact, what is unforgivable is the Democrats’ acquiescence and unwillingness to raise the rhetorical stakes.
Even though Judge Barrett is now Justice Barrett, the fight is not over, and Democrats have an opportunity to redeem themselves in the immediate days ahead. It starts by being honest about their previous conduct.
Alexander Heffner is host of The Open Mind and coauthor of A Documentary History of the United States
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