Democrats’ Barrett Demagoguery

A fter their floating of the Court-packing notion proved unpopular, and after their redefining of the meaning of “packing” proved unpersuasive, congressional Democrats and the Biden campaign have settled on a new stratagem to confront the confirmation of Justice Amy Coney Barrett to the Supreme Court. They now warn that they will visit future “consequences” on the country but do not specify what those consequences will be.

This is mainly saber-rattling out of frustration over being unable to stop Barrett’s appointment. To repeat what I pointed out two weeks ago, Democrats do not appear to have the votes they would need to eliminate the filibuster, which is what it would take to expand the Court and pack it with progressive activist justices. Yet, with Election Day just a week away and control of both the executive and legislative branches hanging in the balance, Democrats cannot afford to depress the turn-out of hard-Left voters (particularly the young, who are notoriously unreliable in terms of converting their Democratic Party sympathies into actual votes).

In addition, Democrats can see that their demagoguery has a paralyzing effect on Chief Justice John Roberts. Last week, Roberts joined the Court’s three remaining liberals to block the Court’s review of the Democrat-controlled Pennsylvania supreme court’s rewriting of state election law. The state judges ordered that Pennsylvania’s election board must continue counting mail-in and absentee ballots for three days after Election Day. Worse, it must presume that any late-arriving ballots should count unless there is ironclad postmark proof that they were mailed after the deadline — which will necessarily result in the counting of votes that were not submitted until after the election was supposed to be over (i.e., ballots submitted after the national media have reported voting results).

This creates blatant opportunities for cheating — which is why the Court should put a stop to these antics now. Otherwise, more states will be encouraged to follow suit, dramatically increasing the probability that the Supreme Court will have to decide a case post-election, putting the justices in the awful position of appearing to choose the winner.

Yet, even though the Court’s jurisprudence directs that states not change the rules on the eve of an election, and even though the Constitution explicitly puts state legislatures, not state courts, in charge of setting the rules for choosing electors (Article II, Section 1, Clause 2), Chief Justice Roberts is resistant to having the Court review election-law cases. His alliance of convenience with the Court’s liberal justices resulted in a 4–4 Supreme Court tie: The four conservative justices wanted to stay (stop) the state court’s order, but the deadlock means that order stands. Taking the case would have been the right thing to do, but it appears that Roberts does not like the look of the Court’s ruling in favor of a Republican Party challenge to activist Democratic judges.

On Friday night, Republicans again asked the Court to intervene. If the case is considered again in the next few days, the full complement of nine justices will decide it.

The high stakes brought out the worst in Senate Democrats. Unable to stop Justice Barrett’s confirmation, they railed demagogically against it. Typical (of course) was Richard Blumenthal of Connecticut. He thundered that, by confirming Barrett, Republicans “are shattering norms and breaking the rules and breaking their word,” and thus that “there will be consequences” — just as the Biden campaign vaguely suggests. Busting the hyperbole meter, Senator Blumenthal insisted, “Nothing less than everything is at stake.” “A shift in the balance of the Court” is so grave a matter that “we must act to restore [its] credibility and legitimacy.”

This is wrong on every count.

Republicans have not shattered any norms. As we’ve noted time and again, and as Dan McLaughlin has shown through meticulous assembly of historical precedents, the norm is that when the same party controls the presidency and the Senate, the president’s nominees are confirmed, even in an election year.

The Republicans did not break rules. To the extent there was a rule, it was the filibuster . . . but Democrats trashed it in connection with lower-court judicial nominations so they could assembly-line confirm Obama appointees (after using the filibuster to stop Bush appointees from filling the slots). And there are no rules: In the 1992 election year, Democrats led by then-Senator Joe Biden vowed not to confirm a Republican nominee; in the 2016 election year, Democrats egged on by then-Vice President Joe Biden urged the confirmation of an Obama nominee. The only “rule” is having the power to actuate what a party’s political will demands.

Republicans did not break their word. Yes, Republicans’ 2016 campaign rhetoric urged that the voters should decide which candidate — Trump or Clinton — should fill the vacancy created by Justice Scalia’s death. But Majority Leader Mitch McConnell took pains to point out that there was a stalemate because the presidency and the Senate were controlled by different parties. He did not say the Senate would defy history by declining to approve a nominee if both sides of the equation were controlled by the same party. And while Senator Lindsey Graham (now the Judiciary Committee chairman) did indicate in 2016 that he would not move a nomination in an election year, he also qualified that all bets were off after the travesty that Democrats made of Justice Brett Kavanaugh’s 2018 confirmation hearings.

Finally, “everything” is not at stake when the Court’s ideological balance tilts to the right. Conservative justices believe in restraint. In their view, it is not the Court’s job to make policy. As long as they adhere to the Constitution in enacting their agenda, lawmakers — very much including left-wing Democrats — get a wide berth from conservative justices to enact their policy goals. The caveat is that Democrats must enact their own policies — the politically accountable officials must adopt them by law, not rely on judges to impose them by fiats rationalized by distorting what the Constitution actually says.

A conservative Supreme Court will not usurp the prerogative of the American people to live in accordance with laws passed by their elected representatives. The problem that Senator Blumenthal, the Biden campaign, and other Democrats have is not that the Court would refuse to uphold their policies; it is that those policies are unpopular with the public — which is why Democrats have to mislead Americans about where they’d like to take the country.