27 September 2020 — 1542 mdt

Trump’s nomination of Amy Coney Barrett

Nominating a supreme court justice just six weeks before an election is constitutionally permissible, but it is not always an exercise in placing the nation’s needs above partisan interests. Indeed, the constitution permits a president who loses his bid for re-election to nominate a justice after the election, during the lame duck session of Congress. Again, that would not always be an exercise in placing the nation’s needs above partisan interests.

It is also, as the Garland Merrick debacle proved, constitutionally permissible for the Senate not to take up or vote on a nominee. The constitution only requires the Advice and Consent of the Senate before the nominee can take a seat on the court. The constitution sets no timetable for confirming a nominee.

Implicit in the constitution is the assumption that all branches of government will discharge their constitutional duties in good faith and in a timely manner. But the only remedy for the Senate’s not acting in good faith and in a timely manner on nominations to the supreme court, or a President’s abusing his power of nomination, is voting the rascals out in the next election.

Therefore, Trump’s nomination of Barrett is constitutionally legitimate.

Whether it is politically legitimate is another question. His stated motive for nominating Barrett with such unseemly haste — Ruth Ginsburg still was not in her grave when he announced his choice of Barrett — is having a full strength supreme court before election day so that the court can consider challenges to the election without the risk of a four to four vote. That makes the nomination an election tampering nomination, which is not politically legitimate by any standard.

Democrats have no hope of employing procedural measures to block confirmation of Barrett. They can slow down the process, at the risk of appearing petty and vindictive, but they cannot stop it. The only way the nomination will be rejected is if four Republican senators defect from the party line. That’s possible, but I would not bet even a can of spoiled sardines on that outcome. The issue was decided almost four years ago, on 8 November 2016, when Trump won the presidential election, and Republicans won a majority in the senate, a majority they held in 2018.

If seated on the court, will Barrett recuse herself on cases on the 3 November? If she does not recuse herself, can she be counted on to take Trump’s side on those cases? I don’t know the answer. But I do know that once she’s on the court, Trump can’t fire her, leaving her free to uphold the constitution even if that means ruling against Trump.

In the meantime, Democrats must not divert too much energy to fighting her confirmation just because the rank and file are livid at her nomination. She’ll be confirmed. Democrats must win the White House and Senate to have the power to restore balance to the court and to right the wrong of Mitch McConnell’s deep-sixing of Garland Merrick’s nomination.

Donkeyland,keep your eye on the prize. Elect Biden. Elect Democratic senators. Elect Democratic governors and legislatures.