You don’t need me to tell you that Amy Coney Barrett was confirmed last night as an associate justice of the Supreme Court, or that she promptly celebrated by joining the president at a political event at the White House, one that was quickly made into a political commercial, featuring roughly the same number of people that attended her “super-spreader” nomination announcement. You’re all well-read people and you probably know that already.
What you do need to hear from me is that I got this wrong. The night that Ruth Bader Ginsburg died, Harold Meyerson and I wrote a story explaining why Mitch McConnell would wait until after the election to confirm a replacement. As today is not after the election, I can confidently say we were incorrect! (We did at least predict that Barrett would be the nominee.)
Our instinct was that McConnell would leave the seat open to serve a couple goals: preserve the electoral fortunes of his most vulnerable Senators running in swing states, and seemingly leave up to the voters the trajectory of the Court to juice conservative turnout, only to finish the job in the lame duck period, where he would have both the votes and no accountability for his actions.
The miscalculation, which I recognized just a few weeks later in early October, was that Mitch McConnell already believes this election is over. He doesn’t care much about protecting Cory Gardner in Colorado or Martha McSally in Arizona because he can’t see them possibly winning. Susan Collins got a free pass and was the only Republican no vote last night, but she’ll be tarred with allowing the Court to move into a position to repeal Roe v. Wade on her watch. McConnell also likely believes that Collins is done, and felt no strong pull to save her, either.
His priority was to install Barrett on the Court, and set his legacy for transforming the judiciary. This has been McConnell’s goal ever since he took over the Senate as Majority Leader in 2015. He’s filled every single vacancy in the circuit courts (though one judge on the 1st Circuit just died Monday) and most in the district courts, in addition to the three Supreme Court confirmations in the past four years. Because he has no guile, McConnell admitted that he cared more about the courts than the election on the Senate floor: “A lot of what we’ve done over the last four years will be undone, sooner or later, by the next election,” he said on Sunday. “But they won’t be able to do much about this for a long time to come.”
That’s only true insofar as Democrats don’t resort to packing the court, which isn’t a bad bluff for Republicans to call. For his part, Minority Leader Chuck Schumer said last night, “You will regret this, and you may regret it a lot sooner than you think.” That doesn’t have to just mean court packing; Democrats actually have other options to weaken the power of the courts, but I don’t want to tip my hand too much. All will be revealed soon.
As for those wanting to condemn Schumer for not fighting hard enough to block the confirmation, once McConnell got his full roster of Republicans back in the Senate, there wasn’t a whole lot to be done. There were options when three GOP Senators contracted COVID and it looked like they wouldn’t be available for floor activities. But that quickly subsided. If anything, you can blame Nancy Pelosi for not sending over more than one privileged piece of legislation that Senate Democrats had the ability to bring up to waste time. A steady stream of War Powers and Congressional Review Act resolutions and even impeachment articles could have kept the Senate floor busy, though McConnell had options to parry that and the votes to do so.
The important thing McConnell said in that Sunday statement is that his work will be undone by the next election. The next election is in a week. He knows.
That doesn’t mean that Republicans won’t try to cheat to prevent that from happening, and a Supreme Court with Barrett on it is essential to that strategy. Yesterday, without her input, the Court upheld Wisconsin’s voting laws 5-3, along party lines, invalidating any mail-in ballot that doesn’t arrive by the time the polls close on Election Day. (This suggests that Barrett isn’t necessarily needed for some cases.) The frightening part of that is Justices Gorsuch and Kavanaugh agreeing with William Rehnquist’s lonely concurring opinion from the Bush v. Gore case, that only state legislatures set election rules, effectively invalidating judicial review for elections at the state level.
That invites a Court with Barrett on it to use the theory to invalidate untold ballots from swing states, particularly Pennsylvania and North Carolina where there are cases lined up, in an attempt to eke out an election for Donald Trump. More ominously, Kavanaugh’s concurring opinion appeared to suggest that only votes counted on election night count for the election. Kavanaugh also cited a legal scholar who came to the opposite conclusion than he did about mail-in ballots. The entire point is to reach for any justification to get to the pre-ordained result, one that would suppress the vote and tip the election.
This is where that burgeoning early vote does come into play. Like a national version of the Streisand effect, by loudly declaring that certain late-arriving ballots may not be counted, the Court and the Republicans are surging Democrats to the polls as soon as humanly possible. Late-arriving ballots typically skew Democratic, but that may not be the case this year. And inclement weather or, I don’t know, a pandemic, could keep Republican voters disproportionately waiting for Election Day from the polls. This attempted putsch could backfire. But that doesn’t make it less scary, since the intent is to deny the rightful vote of an untold number of people. Democrats will need to reckon with a Court likely to be this drunk on its own power.
Amid all the bad news, the promising development is that AstraZeneca has reported that its coronavirus vaccine has produced an immune response in both older and younger adults. This isn’t the end of the story, of course, just a preliminary statement. But the vaccine process, relatively speaking, has been smooth, and AstraZeneca has been among the most forthright and willing to show their data. With hospitals in some parts of the country filling up again, here’s hoping this is a sign of the end of the beginning, if not the beginning of the end.
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Days Until the Election
Today I Learned, Election Edition
- The Nib has immortalized me in cartoon form, in a comic that draws from my book Chain of Title. (The Nib)
- Amazingly, Trump is not running on any second-term agenda. (Axios)
- As I said two weeks ago, Trump is running away precipitously from his immigration record. (Wall Street Journal)
- We could see runoff elections in early January in both Senate races in Georgia. (Atlanta Journal-Constitution)
- Fox News on the Hunter Biden beat to a greater degree than the “but her emails” beat. (New York Times)
- Speaking of Fox, they might not have any anchors left for Election Night coverage because they’re all on COVID quarantine. (Daily Beast)