Donald Trump & his Supreme Court
Last month, on the same day Donald Trump picked his nomination to succeed Ruth Bader Ginsburg, he doubled down his refusal to leave the White House if he were to lose the election.
“We are going to have to see what happens,” Trump said. “Get rid of the ballots and…there won’t be a transfer, frankly.”
Though it may sound like bravado (it is), the President is serious. He won’t leave. He won’t relinquish the Presidency (the crown?). If he did, he would surrender his power. But he can’t because it’s all about Power.
What is Donald Trump, what is the Republican Party, without Power?
Possible answers: empty rhetoric, policy-less, a dwindling electorate, overpriced suits, overwhelmingly white.
Correct answer: a party with generations of political power as a result of the number of judges they have appointed during these four years of Donald Trump’s presidency.
Cue: Amy Coney Barret.
It has happened. She has happened. After a quietly hurried hearing and a suspiciously nationalistic celebration, Amy Coney Barrett is officially the ninth associate justice on our Supreme Court.
A profoundly mediocre nominee with only two years in private practice, she never tried a case, never argued an appeal, never argued before the supreme court, and never served as a judge until 2017. Republicans wanted her in. Donald Trump wanted her in — recall his refusal to leave office. We knew it when Trump, after the confirmation of Brett Kavanaugh in 2018, told the press he was saving Barrett for Ruth Bader Ginsburg. An immoral statement, it revealed the Republican long game — impose the conservative rule on liberal society. In simpler terms — Power.
Even now, as Donald Trump and Republicans make a campaign issue out of a hypothetical that the Democrats will pack the courts post-2020 election, they are out packing the courts themselves. They are warning Americans about Democratic partisanship, a divide. But ask yourself this question. Where does this divide come from? Is it anything new? It certainly is not an anomaly. The truth is, Mitch McConnell and Republicans have packed (or stacked) the courts for over a decade, bucking Senate traditions. It is their great accomplishment.
On inauguration day, Donald Trump already had 162 district court judge vacancies and 53 appeals court judge vacancies available to him to fill. Contrary to what Trump has been saying — that Obama was idle in filling vacancies left him with all those openings — it was Mitch McConnell who stifled, blocked, and filibustered the seats from Obama and the Democrats. He actively packed the courts, having written novel, but self-serving rules, as he did with Merrick Garland. So, looking back on those actions, the Barrett nomination has been inevitable.
Quiet. Insidious. Inevitable.
It is precisely due to this inevitably that we cannot linger on the confirmation. It is real. It is done.
I said earlier that the Republicans picked a fight they expected to end with this nomination. But it has only just begun.
The Democrats must press the Republicans and plan for a court expansion, as President Franklin Delano Roosevelt proposed in 1937 (he won his re-election soundingly). There is no choice. Plus, court expansion is not etched in stone, nor is reduction for that matter. President Abraham Lincoln signed the Judiciary Act of 1862, adding a tenth justice to the Supreme Court. Following Lincoln’s assassination in 1865, Republicans reduced that number to seven. Republicans then added two justices after winning back the White House in 1869. So, this capricious judiciary tradition seems to be something of a banality. I prefer the revolving door idea Pete Buttigieg proposed during his candidacy.
But what about us voters? As we had with Selma and Occupy Wall Street, with the March on Washington for Lesbian, Gay & Bi Equal Rights & Liberation, with the Great American Boycott, with the Women’s March of 2017 and 2018, with March for Our Lives, with the Black Lives Matter movement — the largest assembled protest in American history — we march forward.
We think ahead. We vote.
Conservatives will inevitably whine that us millennials and the younger generations only protest because we did not get our way. However, it is far from the truth. We protest against a system rigged against us from the outset. We are loud because Senate Republicans cheat. Whether it be red-lining, re-districting, filibustering, making up rules — they cheat to ensure conservative principles hold sway over American law. The policies Trump has enacted and has yet to make law will live long after he leaves office. Republicans did this despite the country demanding otherwise. It is a power grab, as weak as that electoral grip appears to be. We must act on our anger.
We need to make Mitt Romney aware that the majority of the country is not, as he likes to say, center-right socially. We are far more socially liberal than Senate Republicans care to admit.
But it is not just that we are angry about being cheated. We are appalled with these Federalist Society justices. They are originalists, or textualists, which means they interpret the Constitution inflexibly, literally, as is. They are pro-corporation, anti-civil liberties with regards to marginalized communities and voting rights, as we’ve seen with Brett Kavanaugh’s opinion in the Wisconsin voting case, and more. They are the Religious Right, or zealously Christian.
Recently quoted in the New York Times, Josh Hawley, Republican senator of Missouri, jubilantly declared, “The nomination of Amy Coney Barrett is historic…this is the most openly pro-life judicial nominee to the Supreme Court in my lifetime. This is an individual who has been open in her criticism of that illegitimate decision, Roe v Wade.”
There you have it. Hawley baldly reveals his position, just as they all do. Their religious opinions encroach upon not only our secular Constitution but onto the bodies of American women. A woman and her liberty, according to Senate Republicans like Josh Hawley, is illegitimate. Since the conservative Religious Right willed abortion into a “moral” issue (vote-getting) in the 1980s, their crusade for individual liberty has been compromised by relentless attempts such as that and others to limit liberty for women. It is not only an ideological power grab but a literal one.
Recall Donald Trump displaying a vicious, violent, and disgusting form of masculine hegemony as he boasted about grabbing women by the pussy. The only difference is that patriarchy presents itself in two ways: one with wispy blonde hair, tight lips and an inability to speak uncandidly, and the second in expensive suits in Congress’s halls under the guise of family values. Now the entire Republican Party and the conservative majority on the Supreme Court will have the opportunity to do act against with impunity, with God on their side.
No matter. No matter that the majority of the country disagrees with these conservative principles. Most importantly, no matter that women overwhelmingly and vehemently disagree with this flagrant overreach.
Upon reflection, perhaps what hurts most is that while I understand America to be a young country, one bound forever in transition, there remain groups opposed to its progression. Think tanks, party leaders, presidential candidates, and judges on the Right wish to hinder forward movement, to reverse all of our progress, all of our change, into an America of yesterday, a country of yesteryear. (Make American Great Again or Keep America Great both imply either a coarse reversal or a stasis).
To me, to fight against that impediment, that degeneration, is wholly American. It is patriotic to fight for our marginalized communities, against the future consequences of climate change, against oligarchical insurance and banking industries, and our wildly autonomous tech industry, against surveillance capitalism, against attacks on individual liberties.
To have the luxury of winning any legal battles against those oppressions, though, the Constitution of the United States of America must be amendable. Therefore, the interpreters of our Constitution must be adaptable. As we progress, how can they be otherwise? Our Constitution was written by white aristocratic men absent any input of women, of people of color, the Black community, Native Americans, the LGBTQ community, et al.
As a result, it was, and in some cases, remains devoid of rights for much of our citizenry. We have rewritten it many times over to be more inclusive rather than exclusive because we understand our nation to be in endless growth, forever in flux. We learn new technologies by the day, the year. Thought we all face these crises, millennials and younger generations specifically confront daily national challenges — climate change, immigration overhaul, voter suppression, serial shootings, a military-industrial complex, a prison-industrial complex, corporatism, student loan debt, oil dependency, and endless war — and will pay long after the generations in office have gone.
It is a disservice to our growth to think in originalist, textualist ways when interpreting our Constitution. It is a disservice to watch our major parties cheat the system for personal or party gain. And do understand that both establishment parties are complicit. But after the appointment of Neal Gorsuch in 2016, the debacle over Brett Kavanaugh and the credible sexual assault allegations against, and with the confirmation of Amy Coney Barrett, the Republicans can no longer hide behind their shame.
There is nowhere to hide. They are to blame for the utter partisanship we now see in Congress and the White House, in our living rooms with our friends and family. They are to blame for any lack of growth.
March the streets to defend individual liberty and against whatever form of exclusivity you are convinced needs to be inclusive. Vote these cronies out.