The GOP is lying its way toward a court majority
WASHINGTON >> It’s bad enough that Republicans are trying to pack the courts with activist conservative judges eager to use judicial power to roll back nearly nine decades of progressive advances, from the New Deal forward.
It’s even worse that Senate Majority Leader Mitch Mcconnell, R-KY., has barely tried to hide his hypocrisy and highhandedness.
In 2016, he blocked a hearing and a vote for Judge Merrick Garland, who was nominated to the Supreme Court eight months before a presidential election. In 2020, he is using the procedural equivalents of howitzers, Sherman tanks and smart bombs to force through Judge Amy Coney Barrett, nominated by President Donald Trump just 38 days before a presidential election. It is an election that, on the current numbers, McConnell’s party is more likely to lose than to win.
But here’s the topper: Republicans insist on lying about why they are willing to rip apart our institutions, destroy what little political comity we have left, and undercut the legitimacy of the court itself.
In election campaigns, Republicans are crystal clear in telling religious conservatives that they should vote for the GOP because the party’s presidents will name, and the party’s senators will confirm, judges who will overturn Roe v. Wade.
Trump was very explicit (and, it turns out, rather prophetic) about this in an October 2016 debate with Hillary Clinton. “Well, if we put another two or perhaps three justices on, that’s really what’s going to be — that will happen,” he said of tossing out Roe. “And that will happen automatically, in my opinion, because I am putting pro-life judges on the court.”
But a funny thing is happening now that Barrett, whose outspoken opposition to Roe is no secret, has been nominated. Republican politicians, looking toward the election, are acting as if “Roe” and “Wade” are obscure minor league baseball players.
In the presidential debate from hell on Sept. 29, Trump bridled when former Vice President Joe Biden said that Roe v. Wade was “on the ballot” next month.
“You don’t know what’s on the ballot. Why is it on the ballot? Why is it on the ballot? It’s not on the ballot,” Trump fumed. And then, repairing to words popular among those who are caught red-handed, Trump insisted: “There’s nothing happening there.”
Vice President Mike Pence, as is his way, tried to look upright in the vice-presidential debate by declaring, “I’m prolife. I don’t apologize for it.” But he was apologetic enough not to touch the issue of what Barrett would do about Roe.
I disagree with Sen. Josh Hawley, R-MO., on a lot of things. But at least he has the backbone to say he is happily voting for Barrett precisely because “she understands that Roe is — in my words — an act of judicial imperialism.”
Not so Sen. Joni Ernst, RIowa. Never mind that in January, she joined 206 members of Congress in an amicus brief calling on the Supreme Court to reconsider and “if appropriate” overrule Roe. But finding herself in a tough race for reelection against Democrat Theresa Greenfield, Ernst replied “I don’t see that happening,” when asked if Roe would be overturned. Oh, yes, but she did call herself “proudly pro-life.”
Together, Trump and Pence have laid out the GOP’S talking points: Find any way possible to marry the words “prolife” with “nothing happening here.”
The same disingenuousness is at work on the Affordable Care Act. Republicans failed to repeal it in Congress and suffered for their efforts in the 2018 midterm election. So they hope the Supreme Court will do their dirty work for them — after Nov. 3.
It’s not a bad bet that Barrett will join the demolition effort. After all, the attitude toward precedent she outlined in a 2013 Texas Law Review article can be summarized as: Fuggedaboutit. She quotes the late Justice Antonin Scalia describing himself as “fainthearted” — not a phrase you’d associate with him — in his originalism because of his willingness to follow some precedents. There’s nothing faint-hearted about Barrett, who in another law review article loyally defended her mentor for being less faint-hearted than he confessed to.
But have no fear, Pence said in the VP debate: “President Trump and I have plans to improve health care and to protect . . . pre- existing conditions for every American.” Except there is no plan. In expecting voters to take on faith the existence of a “plan” that has been promised for four years and never materialized, Trump and Pence show that they regard their fellow citizens as naïve fools.