The high cost of confirming Barrett
There’s one good thing that can come from the power-mad Republican rush to jam Amy Coney Barrett onto the Supreme Court before the election: All of a sudden, to borrow from the late Sen. Daniel Patrick Moynihan, Americans in the tens of millions now know that our country faces a crisis of democracy triggered by the right wing’s quest for unchecked judicial dominance.
Judge Barrett’s testimony before the Senate Judiciary Committee and President Donald Trump’s comments before naming her brought home just how dangerously disrespectful of democratic norms the enlarged conservative majority on the court threatens to be.
Her silence on the most basic issues tells us to be ready for the worst. She wouldn’t say if voter intimidation is illegal. She wouldn’t say if a president has the power to postpone an election. She wouldn’t even say that a president should commit himself to a peaceful transfer of power.
What’s controversial in a democratic republic about the peaceful transfer of power? It’s hard to escape the conclusion that she was nodding to the president who nominated her. He said he wanted a friendly judge on the court to deal with electoral matters.
Rushing such a nominee to the high court just in time to rule on any election controversies would be troubling enough. But it is all the worse for being part of a tangle of excesses by the Republican Party and the conservative movement.
The truly scandalous lack of institutional patriotism on the right has finally led many of the most sober liberals and moderates to ponder what they opposed even a month ago: that the only genuinely practical and proper remedy to conservative courtpacking is to enlarge the court.
Note the language I just used. Court-packing is now a fact. It was carried out by a Republican Senate that was cynically inconsistent when it came to the question of filling a court seat during an election year. A Democratic president could not get a hearing on Judge Merrick Garland. A Republican president got express delivery on Barrett.
That’s two seats flipped. Then consider the lawless 5-4 Bush v. Gore ruling by conservative justices in 2000 that stopped the Florida recount and let George W. Bush become president. (Chief Justice John Roberts Jr., Justice Brett Kavanaugh and Barrett were all Bush lawyers in that fight.) After winning re-election the normal way, Bush appointed Roberts in 2005 and a month later named Justice Samuel Alito. That’s four seats out of nine. So it’s not court enlargement that’s radical. Balancing a stacked court is a necessary response to the right’s radicalism. And conservatives are as hypocritical about court enlargement as they are about Garland and Barrett: In 2016, Republicans expanded the state supreme courts of Georgia and Arizona to enhance their party’s philosophical sway.
Court enlargement will be a long battle, but those of us who support it should be encouraged, not discouraged, by Joe Biden’s call for a bipartisan commission to study a court system that is, as Biden put it, “getting out of whack.”