The Contrarian has some observations about the Amy Coney Barrett nomination for Supreme Court Justice and the confirmation hearings that started this week. As I write this, it is anticipated that the Senate will vote next week, and we pretty much know the result.
The present hearings are a show trial: Senators have pretty much declared how they will vote, so both sides can simply play to their bases. Principle? Justice? Fairness? The institution of the Supreme Court? Please. ACB will be confirmed, and we may see some disastrous decisions in the decades ahead.
The nation is in this situation because Democrats lost the last Presidential election and have been unable to gain control of the Senate. It was clear four years ago that the Republic had suffered a catastrophe, and the administration would have four years to do its damage. Nothing should surprise us. Even if voters turn out the current occupant, his outrages will continue right up to the moment his successor takes office, and the legacy of the past four years will extend for decades.
Democrats have made much of this late-term nomination by a (one can hope) lame-duck President. In my view, the Republicans were wrong four years ago to deny a hearing to Merrick Garland. Their convenient turnaround in 2020 only exposes the hypocrisy of the position they took then. In my view, every Republican Senator who served in 2016 and went along with their leaders’ position should be voted out of office.
But while Democrats have every right to point out the hypocrisy of the Republicans in this matter, it is just as hypocritical of them to take now the position Republicans took in 2016. The Republican Senate is doing what politicians do: using their power while they can. Their base elected them to do this. Principle has nothing to do with it. Frederick Douglass famously said, “Power concedes nothing without a demand. It never did and it never will.” If he observed that about the power brokers of his era, why should we expect differently about ours?
The answer for the Democrats is to regain the government and then use that power just as relentlessly as the Republicans are doing now. 1
A couple of years ago I saw the wonderful movie RBG. You don’t have to be an attorney or a constitutional scholar, or even a Democrat, to admire her, personally, intellectually, and professionally. I honor her life and mourn her death. But she didn’t have a vote on her successor in life, and she doesn’t get one in death. Honoring her wishes would be fitting, but it’s not enshrined anywhere in the Constitution. Proceeding with a hurried replacement process isn’t fitting, but it’s legal.
Notes:
- In this vein, personally I don’t like packing the court because it inevitably would become a tit-for-tat process stretching on to infinity. If the Democrats get power and decide to use it to cement their advantage, then I do like pursuing statehood for the District of Columbia and Puerto Rico. I don’t know enough about the legalities of those: beyond the likelihood that they would yield Democratic electoral votes, they have essentially nothing in common. But with enough votes, all that can be sorted out. ↩
