Coney Barrett is Confirmed; Now What?
By: Dr. Dion
Tags: Politics, SCOTUS, Biden, Elections, Courts

How can Democrats undo the harm?

CNN

Last night, the U.S. Senate confirmed Amy Coney Barrett 52–48 to the Supreme Court. No Democrats voted for Barrett. After Sen. Lisa Murkowski reversed her earlier position and voted for her, Sen. Susan Collins was left the lone Republican to vote no on the nomination.

Minutes after the final vote, Donald Trump hosted a second White House event in Barrett’s honor. Before a slightly more socially distanced and slightly more masked crowd of conservative and Republican onlookers, Associate Justice Clarence Thomas administered the constitutional oath to Barrett. After she receives the judicial oath from Chief Justice John Roberts this morning, she will take her place on the high court and immediately begin weighing in on the cases of the day, including many pertaining to the 2020 election.

This, of course, is the reason for the rush to confirm Barrett. Ruth Bader Ginsburg died only five weeks ago on September 18. Barrett was confirmed at a record pace — in modern times at least — in part because of the possibility that her vote could be essential to ensuring that Donald Trump remains president, even if he does not win the presidential election.

As I wrote about previously, Barrett’s ascension to the SCOTUS will fundamentally change this country in the short and long term. If the court remains at a 6–3, uber-conservative majority, one can anticipate that decisions will be made that are not in line with the will of the electorate. The proof of this is — in part — that five of the nine justices were added to the court by a president who failed to win the majority — even the plurality — of the American electorate upon their own ascension to the office.

Photo by Maria Oswalt on Unsplash

The people rejected them; the electoral college bailed them out. By extension, the people rejected their nominees; the U.S. Senate bailed them out.

The Democrats are not without options, particularly if they win the U.S. Senate on November 3, (or shortly thereafter). If they win the Senate and Trump is reelected, the House could impeach — again. There are certainly more unexplored crimes and unconstitutional acts in Trump’s bag of tricks. The Democrats would likely have the votes to remove this time, or at least hear witnesses.

If the Democrats run the table and win the Senate and the White House, the pressure from the left will be immense for a President Joe Biden, Speaker Nancy Pelosi, and Sen. Leader Chuck Schumer to expand the SCOTUS.

There are three justifiable — and easily explainable — options for Democrats to expand the high court if given the opportunity:

Option 1

The Play — Democrats expand the Supreme Court by one seat.

Like an endowed professorship at a university, the Dems create “The Merrick Garland” seat.

The Rationale Biden nominates — of course — Merrick Garland, citing the wrong that was done in never giving him an up or down vote and claiming that the expansion merely rights an historic wrong.

The Fallout The Republicans cry foul — but not so loudly because they maintain a 6–4 edge and they have no credible rebuttal to the argument that Merrick Garland was treated unfairly. The progressive left also cries foul because a one-seat expansion is not enough to satisfy their thirst for revenge. While Roberts has at times swung left — usually in cases of maintaining a previously set judicial precedent, the left is not pleased to have to rely on a George W. Bush appointee to save them from the far right judicial agenda. The center provides Biden some cover; they have never been comfortable employing Republican-style hardball tactics but even they can stomach the Merrick Garland Endowed Judicial Seat.

Option 2

The Play — Democrats expand the Supreme Court by four seats to 13 justices, one for each federal circuit.

The Rationale When Congress settled on nine justices, the reasoning was partially so that there was one justice per federal judicial circuit, at that time, nine. Due to the growth of the country and the judicial workload, there are now 13 federal judicial circuits. To wit, there is a case to be made for one justice per circuit. Biden & Co. would have a heavy lift to make this case, though, since there have been 13 circuits since 1982.

The Fallout Assuming all four additions are progressive jurists, this would bring the high court to a 7–6 liberal majority. Republicans would cry foul — very loudly this time. They would call the Democrat rogues, cheaters and other names that amount to nothing more than projection. They would stir up their base for the 2022 midterms to attempt to reclaim the Senate and then the court expansion wars would begin in earnest. The far left would be giddy, however.

uscourts.gov

Option 3

The Play — Democrats expand the Supreme Court by five seats to 14 justices, one for each current justice who was nominated by a popular-vote-losing president.

The Rationale Bush and Trump both lost the popular vote in their initial run for the White House — Bush by a little, Trump by a whole lot. Yet, those two presidents have installed nearly 60% of the court. That grates on both the center-left and the far-left. There is a strong-ish case to be made that the Dems should expand the court by five seats so that the party that won the popular vote in 2000 and 2016 can have its choice of judicial nominees added to the high court.

The Fallout Catastrophic. This would bring the court to an 8–6 liberal majority. It would prove to many skeptics, including this humble writer, that the Democrats are capable of playing hardball. There are few who believe they are — probably including Democrats themselves.

But — assuming they chose this bold path — the Republicans would be apoplectic. They would raise millions — maybe even billions — to make Schumer a one-biennium Senate leader. The entire right-wing, Fox News, Federalist Society, Heritage Foundation, National Review machine would suddenly become concerned with good governance, fairness, traditionalism and historical precedent once again.

The idea that the party in power has the right to do what it wants — which they’ve held so tightly to during the Mitch McConnell reign of terror — will be nowhere to be found. The Senate will likely be lost to the Dems in 2022 as they are crushed under the weight of a far-right disinformation campaign. Once back in power, Republicans will likely expand the court even further, triggering a back and forth that won’t end until the high court looks like the Brooklyn Tabernacle Choir.

The far left will be ecstatic though — for a while. However, if past is prologue, they will fail to make the high court a seminal issue of future elections, ceding ground to the Republicans yet again. The backlash from moderates who believe Biden & Co. have gone too far will be real, further putting the Democratic 2022 Senate and even a Kamala Harris 2024 White House at risk. Dems will gain in the short term but likely lose big in the longer run.