A New Supreme Court Nominee Before the Election May Spark a Crisis of Legitimacy

The death of Supreme Court Justice Ruth Bader Ginsburg just turned the already frenetic 2020 election into a tornado. Senate Majority Leader Mitch McConnell waited barely two hours before announcing that “President Trump’s nominee will receive a vote on the floor of the United States Senate.” And a number of Democratic senators have been almost as quick to denounce that move, especially given McConnell’s refusal to grant a hearing to Barack Obama’s Supreme Court nominee, Merrick Garland, a full eleven months before the end of Obama’s second term.

The politics of it all are fluid at the moment, and nearly impossible to predict. Most Republican senators seem gung-ho to fill the seat, but there is also some dissent, with Alaska’s Lisa Murkowski issuing a statement that there should be no vote on a court pick before the election, and Maine’s Susan Collins, in a tough reelection bid, stating the president who wins on Election Day should fill the seat. But even Murkowski’s statement raises the question of the Senate ramming it through in the lame duck session, even if Biden wins. And it’s also more than a bit convenient that saving the vote for after the election takes the political pressure off, and those senators can vote their “consciences” without consequence.

Truth is, the only leverage Democrats even have is a moral argument, and the threat to take steps to expand the court with two (or four) more nominees if and when Joe Biden is sworn in, among other measures. That approach has been portrayed in otherwise “mainstream” media as drastic (as would be granting statehood to Washington, D.C., and Puerto Rico), but both measures are spelled out in the Constitution as well within the purview of Congress. What was drastic and unprecedented was McConnell refusing to give Judge Merrick Garland a hearing.

Let’s talk about something else we’re going to have to confront in the very near future: legitimacy.

Making these threats or promises is not so much a strategy as it is the only card left in the deck, however. Public pressure—including the final plea of the late Justice Ginsburg herself—to abstain from filling the seat before the next administration may make a difference, but McConnell has shown himself to be utterly without a moral center, and all his talk about tradition only applies when it benefits himself or his party’s grip on power.

So, let’s talk about something else we’re going to have to confront in the very near future: legitimacy.

It goes without saying that a Supreme Court pick rammed through before the election (or worse, in a lame duck session after Trump is defeated) will never be seen as a fair choice. Just as Justice Neil Gorsuch will always have an asterisk next to his name for the manner in which his seat was stolen from Obama, a far-right Trump pick will always have that cloud over their head.

But it’s one thing for a single Supreme Court justice to be seen as tainted when there are eight (or more) others who may balance things out over the longer term. It’s quite another thing when the asterisk is next to the president of the United States.

Trump is going to cheat. He has said this out loud, and taken actions to block funding for the post office, suppress voting at the polls, even encouraging his supporters to vote twice. He wants that ninth justice because he anticipates a 5-4 split ruling in his favor in his plans to dispute a Biden victory, including a baseless claim that “fake ballots” would lead to a fraudulent outcome. We need to be prepared for this.

Americans are running out of alternative options.

The resilience of the American system so far—232 years since the ratification of the Constitution—has been rooted in a set of norms that, with one exception, have allowed the (usually) two major parties to trade places in power civilly every few years. This has allowed our much-vaunted “peaceful” transitions of power, the nice notes departing presidents leave for their successors regardless of party, and the general feeling of well-wishing for success, because at the end of the day, we were all on the same team: Team America.

Former House Speaker Newt Gingrich’s transformation of politics into a blood sport could be the initial spark that changed the rules of American democracy. Gingrich has long since departed Congress for the lucrative lecture circuit. But his spirit lingers on: Politics became about seizing power and keeping it, permanently disenfranchising the opposing side. George W. Bush’s adviser Karl Rove was Gingrich’s direct successor in pursuit of a permanent Republican majority. In this version of politics, the essential right for anyone to rule other than the Republican Party was illegitimate.

That is the real toxicity inside the Republican Party, undergirding its perennial corruption, racism, fundamentalist Christianity, and authoritarianism. Power, not democracy, is the goal, and Mitch McConnell is simply the latest iteration of Gingrich.

While far-right activist Pat Buchanan was kept off the Republican ballot in 2000, his form of nativism was resurrected in the tea party, ostensibly a Libertarian-ish movement opposed to taxation. But the election of Barack Obama spurred the movement to quickly morph into a party of White nativist grievance, which has now lodged itself firmly in the core of the Republican Party.

A system of democratic voting that is fair and free is what allows a people to accept unfavorable outcomes. It’s why former Vice President Al Gore, facing a Supreme Court order to stop recounting votes in Florida, conceded the presidential election of 2000 to George W. Bush. Gore said he was doing it for the benefit of the nation, and indeed, he was capping the long 20th century tradition of comity in politics by bowing and exiting gracefully from the stage.

This basic tenet seems to be lost among the two major parties today: the Republicans because they are working to ensure the vote will neither be fair nor free, and the Democrats because, until this week, they still appeared to be acting as if nothing had changed, playing by a rulebook their opponents long ago threw out.

If elections are neither free nor fair, why would anyone accept an unfavorable outcome? Unfree and unfair elections are by definition undemocratic. And if favorable outcomes cannot be achieved at the ballot box, people will look elsewhere for the weapons with which to fight—sometimes literal ones.

Taking to the streets to protest for change is as American as its Constitution, baked into the First Amendment.

The thing is, Americans are running out of alternative options. The court system, long considered the last refuge of the average American seeking justice, has shown itself to be corruptible, as a slate of newly appointed federal judges cut from the Federalist Society mold seem perfectly willing to throw out precedent to advance a narrow corporatist agenda.

Especially regarding police violence against Black citizens, the justice system has become a dead letter box of grievance. Police union contracts and court decisions shield officers from most forms of discipline outside their own hermetically sealed departments. Rather than the courts routinely siding with police officers in cases of excessive violence, what we’ve seen is that state and local prosecuting attorneys, who often work hand-in-hand with police, simply don’t bring charges, either out of a corrupt sense of fraternal loyalty, or because it is nearly impossible to get a conviction in all but the most egregious cases.

At the same time, we’re now seeing that the U.S. Department of Justice, under the leadership of Attorney General William Barr, has become a political operation of the Trump administration. In 2020, Barr’s DOJ has protected and declined to press charges (or even investigate) the president, and went easy on his friends—and in the most brazen example, the DOJ is now attempting to reverse the conviction of Trump’s former campaign adviser Michael Flynn, who twice pleaded guilty in federal court. At the top of this corrupt pile, Trump is dangling pardons for anyone willing to commit crimes on his behalf.

After the 2016 election, Trump and his enablers pushed back hard against any investigation or findings into the Russian government’s plot to hack the 2016 election because Trump himself feared (rightly, as it turns out) it would taint his administration with illegitimacy.

Now Trump has apparently lost any squeamishness about seizing a victory by any means necessary.

With Trump’s cheating and intention to cheat more on full display, it is virtually impossible that he would be seen as having won reelection legitimately. Nothing short of a full popular vote landslide in his favor would remove that stain. Given his perpetually low approval rating, he’s unlikely to win even a thin majority of the popular vote.

But thanks to our undemocratic Electoral College system, Trump could lose the popular vote by 5 million votes and still eke out an electoral win, thanks to all the chicanery being planned.

But he’d rather win by cheating than lose fairly, so that’s where we are. And it’s worth asking the question: If our elections are illegitimate, what’s the other option?

Some researchers have said we’re headed toward violence. The Transition Integrity Project, a research project run by academics and political operatives from both parties to game out 2020 election scenarios concluded that most outcomes would wind up with masses of people in the streets.

Because Trump has worked so hard in advance to delegitimize any Democratic victory, it’s virtually guaranteed that his most volatile (and likely armed) followers will launch a new wave of domestic terrorism at their “usual” targets: public demonstrations, Democratic politicians and their offices, Black churches and mosques, and so on. Trump already has been using the apparatus of the state to suppress public action, most notably in Portland, Oregon, but also in the nation’s capital and elsewhere.

We may see that kind of violence even if Trump wins big, because one thing that unifies Trump’s base is their hatred of liberals.

Meanwhile, the opposition, the Democratic Party, will be torn between its institutional reflex to “move on for the good of the country,” and the progressives marching in the street. But it may be that it is the street where the future of the United States will be determined.

In fact, mass public action led to most gains in civil society, from basic labor protections in the early 20th century, to women’s suffrage, the civil rights movement, the LGBTQ rights movement, and the feminist movement of the 1970s, during which Ruth Bader Ginsburg’s early judicial rulings on lower courts set the stage for many equal protection cases to come.

We’re seeing the same thing today, in the Black Lives Matter protests against police killings of Black people, and in workers protesting a lack of health precautions and hazard pay during the COVID-19 pandemic.

Taking to the streets to protest for change is as American as its Constitution, baked into the First Amendment. If the institutions of government are deemed illegitimate, preserving democracy may well be left to the people demanding justice. While that’s a scary thing at this moment in our country’s history, it’s also the one tool that can’t be taken away.