Heather Cox Richardson’s column from October 26 from her blog, “Letters From An American,” about the confirmation of Amy Coney Barrett as an Associate Justice to the U.S. Supreme Court addresses several aspects we must think about as the horrific election cycle draws to a close. Maryland NOW urges our members to vote, but to realize that November 3 is just the beginning of much work we have to do to rebuild our democracy. The Supreme Court, along with our entire Federal judiciary, will take center stage, but is just one piece of what’s before us.
October 26, 2020
Tonight, the Senate confirmed Justice Amy Coney Barrett to the Supreme Court of the United States to take the seat of the late Justice Ruth Bader Ginsburg. The vote was 52 to 48, with no Democrats voting to confirm Barrett. One Republican, Senator Susan Collins of Maine, voted against the confirmation, saying it is too close to an election to fill the seat. Collins is in a tight reelection race against Democrat Sara Gideon, and since Majority Leader Mitch McConnell did not need Collins’s vote, she could vote no on procedural grounds and hope to push fewer voters to Gideon.
Barrett is an originalist, and will cement a 6-3 majority of justices eager to unwind the judicial decisions of the past seventy years that protect civil rights, business regulation, and a social safety net. Today is former Secretary of State Hillary Clinton’s birthday, and as soon as the vote went through, the Twitter account for the Republicans on the House Judiciary Committee tweeted: “Amy Coney Barrett, confirmed. Happy Birthday, [Hillary Clinton]!”
McConnell promptly adjourned the Senate until November 9 without taking up a coronavirus relief bill.
An hour later, Trump held a public ceremony for Barrett at the White House, in an echo of the coronavirus super spreader event on September 26 at which he announced her nomination. The ceremony seemed designed to demonstrate that he rejects scientific recommendations about the virus. Barrett took the constitutional oath, administered by Justice Clarence Thomas, on the South Lawn of the White House. (Chief Justice John Roberts will administer the second oath she must take, the judicial oath, on Tuesday in a private ceremony at the court.) Trump congratulated her in a short speech.
Shortly after the ceremony, Trump released a video of the event with Barrett walking alongside him through the doors of the White House onto a balcony where the two stood for the crowd. It was a triumphant demonstration of Trump’s power, and undermined the illusion that Barrett will be a nonpartisan judge. Traditionally in America, Supreme Court justices keep a distance from political leaders, yet she has just appeared in a campaign commercial for the president.
The significance of Barrett’s elevation to the court showed just minutes before the Senate confirmed her, when the Supreme Court ruled 5-3 for Wisconsin Republicans who want to block the counting of votes postmarked before Election Day but received up to six days after it. Democrats and civil rights groups wanted the extension because of the pandemic. For this year’s primary in Wisconsin, 80,000 ballots postmarked in time arrived after the election were counted; for the election, such late ballots will be rejected. The court’s decision follows originalist ideology: it says states get to run elections however its legislators wish. That principle trumps the right to vote.
That seemingly principled stand in favor of local democracy hides the reality of one-party rule. Wisconsin has been so thoroughly gerrymandered that although Democrats actually won a majority in state elections in 2018, Republicans hold 63 of the 99 seats in the legislature. It is virtually impossible for Democrats to win control of the state and thus the Republican legislature will get to decide who votes. We have seen such political dominance before… just ask any Black or Brown American.
In a footnote, Justice Kavanaugh went further to argue that states need to avoid “the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of the election. And those States also want to be able to definitely announce the results of the election on election night, or as soon as possible thereafter.” This is the argument Trump has been making to delegitimize mail-in ballots, and it is political, not judicial. Absentee ballots do not “flip” an election; they are a legitimate part of an election that cannot be decided until they are counted. And the idea of calling an election on the night it is held is a tic of the media. In fact, no state certifies its election results the day of the election. Some take weeks.
So what we have tonight is the Republican Party under Trump ramming through a third Supreme Court justice who is far out of sync with the vast majority of the American people, an authoritarian ceremony for an election ad, and a sign that partisans are working to steal the upcoming election.
This is not a sign of strength—it is a sign of weakness. Trump’s Republicans have gotten a reliable majority on the Supreme Court—for now—but they have delegitimized the Senate and the Supreme Court. It is the desperate act of a party that is so far out of favor with the American people it has given up winning elections fairly and is resorting to the tactics of strongmen. That McConnell pushed this confirmation through right before the election, rather than holding the seat open to fire up evangelicals as he did in 2016, suggests he thinks that even evangelicals cannot save the White House this time around.
The administration is sinking in bad news. It has given up on combatting the coronavirus, which infected 74,323 more Americans today and killed at least 534. Reflecting that the rising infection numbers mean a slower economic recovery, the stock market today had its biggest drop in a month. Financiers are so tired of Trump’s volatility, including his tweets, that they are pouring five times more money behind Biden. Meanwhile, White House chief of staff Mark Meadows, who admitted the coronavirus policy on Sunday, is so hated that 18 administration officials talked to Josh Dawsey of the Washington Post about him; one White House advisor said “It’s hard to count the ways Meadows has failed as a chief of staff…. It’s been an unmitigated disaster.”
A Trump appointee who chaired the Federal Salary Council overseeing federal pay resigned today in protest over Trump’s recent Executive Order enabling him to fire key federal workers. “[T]he Executive Order is nothing more than a smokescreen for what is clearly an attempt to require the political loyalty of those who advise the President, or failing that, to enable their removal with little if any due process,” Ron Sanders wrote, “As a matter of conscience, I can no longer serve him or his administration.”
And staffers at the Department of Health and Human Services are openly looking for other jobs. Three of them told Politico’s Dan Diamond that they are voting for Joe Biden. “I’ve never voted for a Democrat for president, but Biden hit the sweet spot. I know he’s not too far left and he understands how to make government work,” one said. “And I know he’ll never make fun of [Anthony] Fauci in public.”
Biden’s campaign, run quietly and steadily, has picked up steam until he is ahead in the polls by about 9 or 10 points nationally, and there is no sign that Trump is closing that gap. Clearly, the president had hoped the malarkey about the Hunter Biden laptop story—which we learned today White House lawyers tried to pitch to the Wall Street Journal before Rudy Giuliani took it to the New York Post— would create the same stampede from Biden that the email laptop story caused from Clinton in 2016, but that stampede has not materialized.
On Sunday, nine days before the election, about 58.6 million Americans had already voted early, more than the total number who voted early or by mail in 2016. Registered Democrats have made up 51% of those votes, while registered Republicans have made up 31%, leading Trump officials to attack the legitimacy of mail-in ballots and to insist that “the huge majority of President Trump’s supporters” were planning to vote on Election Day. But Black Americans, the heart of the Democratic Party, are turning out in huge numbers. “This election is for saving the U.S.” business consultant Dave Richards told CNN’s Faith Karimi.
People like Biden. They think he’s a decent man, who cares about someone other than himself. He has plenty of that old word, fallen into disuse in the last four years: character. He has principles, honor, a work ethic, and he treats people with respect—attributes we should demand in our officials. He has provided detailed plans about how he would address the country’s problems: systemic racism, economic inequality, and coronavirus, among others. At the same time, he offers a positive vision of America, a welcome contrast to Trump’s dark vision of American carnage. Biden constantly repeats that there is nothing Americans can’t do if we do it together.
And that, right there, is why the Republicans needed to pack the Supreme Court.
Heather Cox Richardson