The Supreme Court Vacancy and the Democratic Campaign

 CORONAVIRUS DEATH TOLL
Brian Klaas
@brianklaas
 Yes, the Supreme Court is a big deal, but don’t forget: Saturday update:
New covid-19 deaths, yesterday:
Spain: 90
Italy: 10
Japan: 9
Canada: 5
UK: 27
Germany: 7
United States: 954
Population of countries above: 420 million
Population of United States: 328 million

***

The Supreme Court Vacancy and the Democratic Campaign

What is the significance of the Supreme Court vacancy? How might it affect the Biden campaign?

Before going down that Rabbit Hole, let us take a step back and consider where we are, generally, in terms of the Rule of Law under the Donald Trump Administration.

With the entire government apparently under the control of a criminal boss and a criminal gang, we are overwhelmed with the immense level of crimes, abuses of power, and simple unlawful actions which are being committed by the President, government officials, and Republican Collaborators in Congress.

We face nothing short of an all-of-government attack on American democracy and the Rule of Law.

The machinery for the enforcement of the law has been and is being neutered.

First, in normal times, crimes and illegal actions are controlled by the FBI and the Justice Department. But when the Attorney General and the Justice Department themselves appear to have become part of and instruments of the criminal gang, this control is neutralized.

Second, other safeguards have been put in place over the years, such as the establishment of Inspectors General charged with investigating wrongdoing within their respective departments or spheres of responsibility (e.g., the Directorate of National Intelligence or DNI). But when IG’S conducting important investigations are simply removed by the President from office, while others are fired or forced out, this level of control is also completely neutralized.

Third, Congress represents a higher level of political control. But when the president refuses to allow administration officials to testify in oversight hearings, this form of control is similarly neutered.

Fourth, an even higher  level of potential control is represented by the impeachment power. Yet when Senators in the Republican Party of cult followers and Collaborators refuse to impartically consider the evidence, or even to consider it al all in an impeachment trial after impeachment by the House, even this last-resort safeguard of our democracy and Constitution is effectively neutralized.

Fifth, the only other check on actions of the Administration is represented by the Federal Judiciary. But the current President and his Senate Collaborators have made every effort to stack the judiciary with right-wing conservative ideologues who can be counted on to hoe the line of the Trump Republican Party.

This does not represent the democratic ideal embodied in our Constitution, according to which the best candidate for a judgeship, acceptable to both parties, should be approved. It is worth recalling that Ruth Bader Ginsberg, who recently died, was approved by a vote in the Senate of 96-3. The legitimacy of the Judiciary, and particularly the Supreme Court, is largely dependent on a process of selection of judges which is viewed as fair and balanced. One party can try to pack the court with its devotees, but to do so over the unanimous objections of Senators from the other party and in a manner deemed to be unfair, is to weaken the Court, the courts, their authority, and the respect which is held for their decisions.

Considering all of the above, as part of a single effort by an apparently lawless President and criminal gang, we can now see how the Rule of Law is hanging by a slender thread in the United States. With the death of Justice Ginsburg, the apparently lawless President and his criminal gang are on the verge of appointing a Supreme Court Justice who they can count on to hold Obamacare–and protections for pre-existing conditions–unconstitutional, and to overturn Roe v. Wade and the right to an abortion. The Obamacare case is currently pending before the Court.

What we face, quite simply, is the risk or prospect that an apparently lawless President and his criminal gang will succeed in eliminating the Rule of Law in the United States, by creating a majority of the Supreme Court, and appointing countless other trial-level and appellate judges, who are selected on the basis of ideological criteria aimed at ensuring that they will endorse the apparently lawless and unconstitutional actions of Trump and his Administration.

The Republicans may well succeed in placing another ideologue on the Court and creating a new majority of its nine members. The people’s remedy is to throw the Republican Senators and House members who support and have supported Trump out of office.

All of them.

With control of the House and the Senate, under President Biden, Democrats could then proceed to “unpack” the Supreme Court, by expanding its membership to, e.g., fifteen members.

How should the Supreme Court vacancy and Senate confirmation process affect the Biden campaign?  Ultimately, it is a distraction from the urgent issues facing the country which call for voting Donald Trump out of office at the polls on November 3.

See,

Anne Applebaum, “If You Care About the Court, Don’t Talk About It; Fixating on the open Supreme Court seat will provoke a culture war, The Atlantic, September 20, 2020.

These issues include:

1. Health care;

2. Covid-19 crisis management, and 200,000 to 400,000 deaths by January, 2021;

3. Economic support for working families and unemployed during the pandemic;

4. Russian influence over Donald Trump and his administration;

5. Science and climate change;

6. Abuse of power, and obstruction of justice; and

7. Decency and family values.

Joe Biden and Kamala Harris should not be distracted in their campaign against Trump by the Supreme Court confirmation battle. Rather, they should leave this to Democratic Congressmen and Senators. Biden certainly will and should relate the Supreme Court nomination to the future of health care in the United States. Everyone will understand that abortion is on the ballot, without Biden falling into the culture-war trap that giving it great prominence could represent.

The Democrats’ emphasis should be on the seven themes listed above, with relentless and laser-like focus.

The main thing is to remove the apparent crime boss and his criminal gang.

After achieving that, America can begin to rebuild.

The Trenchant Observer

About the Author

The Observer
"The Trenchant Observer" is edited and published by The Observer, an international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, The Observer has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. The Observer speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, The Observer has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on the best articles that have appeared in the blog.

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