Much has been said about Judge Amy Coney Barrett’s qualifications and controversy – and there will be much more to come. However, the real story of the Supreme Court is not about Donald Trump’s youngest candidate. The real story is a nomination process that, if it goes as expected, robs an already discredited court of the constitutional legitimacy it retains.
It doesn’t matter who Trump nominated. If a candidate was confirmed in the last few weeks of an election campaign in which The American people might well give a mandate to a new president and control of the Senate – or in the weeks following an election that leads to such an outcome – the court’s credibility is compromised.
This clear perspective should frame any discussion of what Richard Blumenthal, a member of the Senate Judiciary Committee, aptly calls “this illegitimate sham trial. Efforts to circumvent the will of the people are the main issue for a country where the government – including the judiciary – is supposed to derive its just powers from the “consent of the governed”.
The people have never given this president or Senate the power to make the nation’s Supreme Court the platform for right-wing rights activism that Trump and McConnell seek.
Donald Trump lost the 2016 election with 2.9 million votes. He just secured himself 46.1 percent of the voteversus 48.2 percent for the Democrat Hillary Clinton. In each of the three states the electoral college presented to the Republican candidate, the majority of voters cast their ballots for someone other than Trump – in Wisconsin, 54 percent of voters rejected him; in Michigan, 53 percent rejected him; In Pennsylvania, 53 percent rejected it. He assumed the presidency without a mandate.
But four years after that mandate was denied, this president is making his third nomination to the United States Supreme Court. If Barrett is confirmed, the Supreme Court will be converted. An iconic liberal, Justice Ruth Bader Ginsburg, is replaced by a conservative extremist, Barrett, and the unspoken equilibrium that existed will give way to right-wing rigidity. “This is a transformative appointment,” said Neal Katyal, a former acting attorney general in the United States, who notes that Trump’s two previous decisions, by Judges Neil Gorsuch and Brett Kavanaugh, were conservatives, replacing a conservative and a moderate conservative. “This is really moving from one side of the spectrum to the other.”
Barrett who served only three years The US Court of Appeals for the Seventh Circuit is said to be initiated by the confirmatory trial of Mitch McConnell, the Kentucky Republican who runs a “majority caucus” representing a minority of Americans. Of the 100 senators53 Republicans represent states home to 153.5 million Americans while 47 Democrats (and independents who meet with them) represent 168.5 million Americans. In the last round of the Senate elections in 201852,260,651 voters cast their votes for Democrats, while only 34,723,013 Republicans voted. In 2016When most Americans rejected Trump, 51,496,682 voters cast their votes for Democrats, while only 40,402,790 Republicans voted. In fact, by election cycles since 2000, the Democrats have won the most votes for the Senate in seven. The Republicans won the most votes in just three.
But now, on the eve of an election where the president is running behind in the elections and control of the Senate could shift, Trump and McConnell are racing for the court.
This is an illegitimate process known as a American Constitutional Society President Russ Feingold warns, “threatens the constitutional legitimacy of the court.”
“The nomination comes shortly after President Obama’s 2016 Republicans steal a seat of the Supreme Court and the shameful fiasco that led Brett Kavanaugh to join the court after proclaiming himself a bitter and vengeful partisan.” explained the former chairman of the Constitution Subcommittee of the Senate Judiciary Committee. “If this candidate is confirmed in these circumstances, many Americans will wonder whether the court itself is accountable to the Constitution rather than an ideological faction.”
The Constitutional Convention of 1787 introduced a system of mutual control that separated power between three branches of government. Two of these branches – the executive and the legislative – were expected to be at least a little accountable to the people. With the extension of the right to vote to women and people of color, and the direct election of senators, this accountability has increased over time. Not enough, mind you. We still have an electoral college, gerrymandering and all the other pathologies that undermine and diminish democratic governance. But presidents and senators can usually suggest a link between the mood of the population and the authority they wield.
Not so the Supreme Court. The legal department’s legitimacy has always stemmed from its relationship with the other two branches. An elected president appoints judges; In modern times, an elected senate advises and votes.
A naked seizure of power that radically changes the ideological balance of the court on the eve of an election where voters could signal that they don’t want that balance to shift takes people out of the equation. Power is not derived from the consent of the ruled. Power is directed against the ruled.
“For the sake of the court, the Senate may only accept a nomination to fill the vacancy due to the death of Justice Ginsburg after the inauguration of the next president, who then proposes a candidate,” says Feingold, who argues that if “The President and the majority of the Senate rammed through this illegitimate nomination, and the thus-constituted court of justice was partisan in any controversy surrounding the elections [as President Trump seems eager to see]The time for warning of risks and threats to the legitimacy of the Court is over. The damage will be done, it will be irreparable and we will all be worse for it. ”
Feingold does not exaggerate the case. If a court hastily rebalanced in favor of the president is asked to rule on electoral issues in 2020, it has no credibility as an arbitrator on those issues. At that point, the constitutional illegitimacy of the court becomes the country’s constitutional crisis.