Federal Courts and Nominations

RELEASE: RUSHED NOMINATION TO REPLACE RBG AMID ELECTION AND PANDEMIC PUTS SUPREME COURT’S LEGITIMACY AT GRAVE RISK

“Donald Trump and Mitch McConnell have placed America’s governing institutions at risk of permanent damage” — CAC President Elizabeth Wydra

Washington, DC – On news today that President Donald Trump is expected to nominate Judge Amy Coney Barrett to be an Associate Justice of the U.S. Supreme Court to the vacancy left by the death of Justice Ruth Bader Ginsburg, who passed away just eight days ago, Constitutional Accountability Center President Elizabeth Wydra issued the following statement:

Donald Trump and Mitch McConnell have placed America’s governing institutions at risk of permanent damage, with the American people’s health, equal rights, and belief in basic fairness on the line.

They have begun their rush to replace Justice Ginsburg, an icon of equality and justice, barely a week after she passed away. They are doing so against the characteristic wisdom reflected in her dying wish — embraced by a majority of the American people—that she not be replaced until the next president is inaugurated. As Justice Ginsburg would have known better than perhaps anyone else, the legitimacy of the Court she served so well and the legacy she worked for decades to create, hang in the balance.

Contrary to Republican praise of her legacy, Trump and McConnell have chosen a nominee almost certain to undo the very work to which Ginsburg dedicated her professional life. They have chosen to force a debate over her replacement in the midst of a presidential election — while people are already casting ballots in races for president and Senate —in an act of brazen hypocrisy, contradicting the Republican stance in 2016 when they blocked Judge Merrick Garland from even getting a hearing in the Senate for a vacancy created nine months before the election.

To do this, Trump and McConnell have chosen to steal valuable time from addressing the COVID-19 pandemic that in America has infected more than 7 million people, of whom more than 200,000 have been killed. They are doing this to install a new Supreme Court justice who meets Trump’s litmus test to overturn the Affordable Care Act — including its protection of people with pre-existing conditions (which COVID-19 could be one) — at the same Court where Trump is now challenging its constitutionality.

They have chosen a nominee who meets Trump’s litmus test to overturn Roe v. Wade and eviscerate the right to abortion for people across America.

They have chosen a nominee almost certain to be a rubber stamp for the U.S. Chamber of Commerce and big business, which have already seen historic success before the Roberts Court, which has routinely distorted the law to benefit corporate interests, while hurting workers, consumers, and the environment.

President Trump and Senate Majority Leader McConnell wish to push through a nominee, as Trump has openly boasted, to rule on eventual legal challenges Trump might bring should he lose in November. As one news report put it, Trump is “so keen on having his yet-to-be-announced Supreme Court nominee confirmed by Election Day in part so that the justice would be on the bench to vote on any legal disputes related to the election.”

Let me be clear: For the Supreme Court to have legitimacy in the eyes of the American people, people must be confident that the justices will act as trustworthy and independent arbiters in the cases before them. With such confidence, the American people follow the Court’s rulings voluntarily and expect those in power to do the same. Without that legitimacy, however, the Court can no longer fulfill its critical constitutional function. The fewer people who believe that the Court is impartial, the fewer who will follow its orders without being forced to. That is a road none of us should want to travel. Nevertheless, the actions of Trump and McConnell in this vacancy crisis drip like acid on the legitimacy of the Supreme Court. They confirm in the minds of many that, as they may have suspected all along, the justices are just politicians in black robes whose jerseys—Team R or Team D—are hidden underneath.

Looking at the evidence of today’s nomination, we can arrive at only one conclusion: Trump and McConnell have placed over any nominee a cloud of corruption and partiality that will not clear. No one can trust that this nominee, if given the chance, will do anything other than strike down abortion rights nationwide, strike down the Affordable Care Act with its protection of pre-existing conditions, and give this President a free pass to re-election. That’s not what any court should be about, least of all the Supreme Court of the United States.

Instead, before choosing a new justice, we must look to the full arc of our Constitution’s progress over more than 230 years. When we do that, we see that our Constitution is, in its most vital respects, a progressive document. It was written by revolutionaries and amended by those who prevailed in the most tumultuous social upheavals in our nation’s history—the Reconstruction Republicans after the Civil War, the Progressives and the Suffragists in the early 20th Century, and the Civil Rights and student movements in the 1950s and 1960s. It has been written and re-written to guarantee equality for all persons, ensure the right to vote free from discrimination, protect the rule of law, and give the national government the power to solve national problems. Our Constitution is both a record of where we in America have been, and a North Star marking a path toward the “more perfect Union” we want to be. Only a nominee who understands this story, committed to upholding our whole Constitution and its text, history, and values, is fit to replace the American giant who was Ruth Bader Ginsburg.

Donald Trump and Mitch McConnell, it has long been clear, dismiss this belief in our Constitution. Their decision to press ahead with today’s nomination underscores the one constant of their partnership in office: A willingness to grab and abuse power, no matter the damage done to our institutions or our people. With that firmly in mind, we will examine Judge Barrett’s record in coming days and provide additional analysis as warranted while this process develops.

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Resources:

CAC’s record of work on judicial and executive nominations: https://www.theusconstitution.org/issues/federal-courts-nominations/

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Constitutional Accountability Center (www.theusconstitution.org) is a think tank, public interest law firm, and action center dedicated to fulfilling the progressive promise of the Constitution’s text and history. 

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