Close observers of American democracy are always attuned to the first Monday in October, when the Supreme Court begins its new session.
This year, in addition to several important cases on the docket, the court has been referred to as “the October Surprise” of the 2020 presidential election (at least prior to the hospitalization of the president). The death of Justice Ruth Bader Ginsburg created a vacancy nearer to a presidential election than at any time in recent American history.
How should each party proceed? Will the actions regarding the Supreme Court be a deciding factor in this most important election of our lives (many say it is the most important election in American history)?
Whatever transpires before Nov. 3 or in the Lame Duck Congress (looking more likely, given that two of the members of the Judiciary Committee – present at Trump’s super-spreader event – have contracted the virus), controversies sparked by this year’s court appointment could finally spur reforms regarding all lifetime federal justices and judges. These are the public officials who the perspicacious French analyst Alexis De Tocqueville portrayed as “the Aristocracy of the Robe.”
As a student of Columbia Professor Henry Steele Commager, I was impressed, more than a half century ago, when he devoted an entire semester to examining Tocqueville’s significant commentaries in his book, “Democracy in America” (originally entitled “Equality in America”).
Remaining relevant is Toqueville’s attention to the contradiction that the most advanced democracy in the world gave such vast power to officials appointed (not elected) for life, while the nation celebrated “the people as the constituent power.”
Once they were appointed, members of the federal judiciary could serve for decades, even until they died, while presidential and congressional elections were regularly conducted. There was no legal way to hold lifetime federal judges accountable to the voters or to the president who nominated them and the Senate that approved their confirmation.
Democratic candidate Joe Biden gave a reasoned response to the debate over how to proceed with a replacement for Justice Ginsburg, although his views received sparse media attention. He did not challenge Trump’s assertion that as president he had the legal “responsibility” to nominate a replacement. Biden also did not challenge the right of the Senate to proceed with hearings and a confirmation vote prior to Nov. 3.
Biden was correct to disavow arguments by others that such actions would create a “constitutional crisis.” He recognized that Trump and the Senate had the legal power to act with any timetable they selected. His key contention was whether both should demonstrate statesperson-type judgment and exercise restraint, declining to use legal powers at a time when the presidential election was so near.
Public opinion polls support Biden’s reasoned view to wait until voters have spoken before naming a most significant lifetime appointment. Many others are charging Republican senators and Trump with rank hypocrisy, an indictment they richly deserve because of the way they responded to Obama’s nomination of Merrick Garland in 2016 (Amy Coney Barrett is also on the record opposing Obama’s nominee in 2016 ). At the front of the hypocrites (not surprising) stands Trump. He is documented on visual recordings, saying Obama’s nomination was too close to our citizens’ selection of a new President, a mere “nine months away.”
Now, Trump and Senate Republicans are undeterred when a presidential election is less than a month away, and, unlike in 2016, tens of thousands of Americans have already cast early voting ballots in their states. GOP hypocrisy is soundly denounced. Still, Biden has been consistent in recognizing that in both 2016 and 2020, the timing rests with those who have the current power. Republicans have grown fond of quoting Obama’s “elections have consequences.”
This year Republicans have added a power argument that builds on Obama: When the Senate and presidency are held by the same party, they are entitled to act in any time frame they choose. That is legally correct, but what of the view by Biden and many others that restraint can serve higher purposes of democracy?
Waiting until a new president is elected gives citizens the chance to show their preference for the person who can be on the High Court for 30 or 40 years. In choosing Coney Barrett, age 48, Trump has strikingly sent the message that his nominee, if confirmed, could be on the Supreme Court until 2060 or beyond, if she reaches or exceeds Ginsburg’s age at her death.
Coney Barrett has a clear conservative record, similar to Scalia, for whom she clerked. Yet opposing her will not be easy; she has outstanding academic credentials and, as a mother of seven children, she is impressive when presented with her family. She is also a devout Catholic, raising concerns about whether attacks on her could risk losing an important share of the Catholic vote.
Several Democrats are working to block Republicans from getting the 51 votes needed to confirm Coney Barrett before Nov. 3. Other strategists are urging Biden to keep his eyes on the prize: winning the presidency. Their view is that it is a wasted effort to try to get Republican senators to abandon Trump and that attacking Coney Barrett, especially for her religious views, will have a backlash.
This approach involves highlighting only Coney Barrett’s past positions as a threat to women’s issues and to Obama’s Affordable Care Act, especially during this pandemic, when health insurance continues to be a huge concern.
For Democrats, the challenge is what to do if Coney Barrett is confirmed now or in the post-Nov. 3 lame duck session and if the predicted Blue Tsumani comes to pass?
A Biden presidency, with an expanded Democratic House and regained control of the Senate, will have time and options to address – what he and his running mate have been careful NOT to address prior to the election – reforms to the size of the Supreme Court and the duration of its terms, echoing Tocqueville’s challenges to “the Aristocracy of the Robe.”