The stakes in filling a seat on the U.S. Supreme Court are the highest in American history. Here’s why:
After decades of judicial activism, the Supreme Court has become an unaccountable legislative body with the power to impose its policy preferences (in the guise of “interpreting” the law) on the entire country with no checks or balances. The justices literally have dictatorial powers that they can and do use with little restraint and no accountability, and they all get to use that power for as long as they live.
Think that’s an exaggeration? Where in the Constitution does it say that women have a right to abortion? Where does it say that police must read a prescribed message to criminal suspects when they’re arrested? Where does it say that people can be criminally punished for having hateful thoughts or that governments can permanently confiscate your property based merely on the suspicion that it was the product of criminal activity or that government can take your real estate for the purpose of selling it to someone else or that men have the right to use women’s restrooms?
None of those things are in the Constitution, but all of them are the law of the land because nine unelected unaccountable justices decided they wanted it to be so.
So, now every SCOTUS appointment has the absolute highest stakes: Who is going to get a lifetime appointment to an unaccountable body with virtually unlimited power?
Once you understand the enormity of the power at issue, you can understand why both parties will stop at nothing to decide who gets to wield it.
The only thing that has prevented the Supreme Court from dictatorially imposing the entire leftist policy agenda on our country has been that there has been an ideological deadlock on the court. For the past quarter century, there have been four liberal judicial activists, four conservatives who generally show judicial restraint, and one moderate conservative with the tie-breaking vote who has been more selective than the liberals about the policies he wants to impose on the country by judicial fiat. This balance prevented the liberal judicial activists from wielding as much dictatorial power as they wished.
Now, with the loss of liberal Justice Ruth Bader Ginsberg, the Supreme Court consists of three liberals, four conservatives, and one moderate conservative. The Republicans know they have a chance to appoint another conservative that would mostly prevent the liberals from being able to impose their agenda on the country, even with support from the moderate conservative justice. The Democrats want another liberal justice so they can still get at least some of their agenda that they can’t pass through the people’s elected representatives imposed on us.
So, with the stakes higher than ever, here is what’s going to happen:
First, I guarantee that President Trump already knows who he’s going to nominate and that he’s known for months. But despite the fact that he wants his nominee to be confirmed by the Senate before the election in six weeks, he is going to wait until next Friday or Saturday to announce his choice (1) to respectfully allow Justice Ginsberg to be properly memorialized and buried, and (2) to secretly inform the Senate Republican leadership of his choice so they can get a head start preparing for the Democrats’ inevitable attacks.
Trump has already announced that his choice will be a woman. The nominal reason is to replace a female justice with another female. The real reason is so that the Democrats can’t go back to their normal playbook and find women to make false allegations of sexual misconduct against the nominee like they always do. That tactic won’t work against a female nominee.
I think it’s likely that Trump will nominate Seventh Circuit Judge Amy Coney Barrett. I think this for two reasons: She’s a strong proven principled conservative, and she’s a devout Catholic. Trump knows that the Democrats won’t be able to resist attacking her for her Catholic faith, as they openly did during her confirmation hearings for her current position. That will be their primary attack. Trump knows that the Democrats are so out of touch that they won’t appreciate how many Americans will be deeply offended by these bigoted attacks. Appointing Judge Barrett will be Trump’s latest use of his rope-a-dope tactic that causes his Democrat opponents to damage themselves more than him with their hateful attacks.
In the meantime, the Democrats and their loyal lapdog “news” media will continue to trumpet their insistence that Trump refrain from making a nomination, and that the Senate refrain from confirming any nominee, until the next president is inaugurated. They’ll continue to argue that a Republican Senate that refused to hold confirmation hearings on President Obama’s SCOTUS nominee during the 2016 election is hypocritical to do so during this one.
Let’s be honest. They’re right. It is blatantly hypocritical, and it is both dishonest and disingenuous for the Republicans to claim otherwise. But the Democrats are being equally hypocritical because they and everyone else know that they would have done the exact same thing, both in 2016 and now, if the roles had been reversed. The fact is, hypocrisy is a pretty weak reason to cede a fight with stakes as high as this one, and neither party would ever do so.
While the Democrats are hypocritically screaming “Hypocrisy!,” they will also be putting the finishing touches on their attack plans against the nominee. They know who is on the short list of possibilities, and they’ve already done their opposition research and prepared their smears. Once the president announces his nominee, the Democrats will, within seconds, rush to their “news” media allies’ microphones with their prefabricated attacks. Their “news” media allies in turn will be prepared with their coordinated softball questions and punditry to help the Democrats with those attacks.
How do we know that the Democrats will engage in fierce personal attacks? Please. From Robert Bork to Douglas Ginsberg to Clarence Thomas to Neil Gorsuch to Brett Kavanaugh, Democrats make hateful dishonest made-up defamatory smears against anyone nominated by a Republican president. They are entirely Machiavellian and entirely shameless. They would sell their own kids into slavery if they thought it would defeat a Republican SCOTUS nominee. You can be more certain that they will do so again than you are about death and taxes.
Meanwhile, Speaker Pelosi has threatened to impeach President Trump and Attorney General Barr as a delaying tactic. Obviously using impeachment as a political “arrow” in their “quiver” (to use the Speaker’s own words) to impede a president’s legitimate use of his constitutional powers would be blatantly unconstitutional. But the Democrats no longer care at all about the integrity of the Constitution. Nevertheless, although I don’t think the Democrats are above making such a crass move, I think they’ll refrain out of political pragmatism: They’ll quickly find that the public won’t stand for such a blatant abuse of power. Pelosi may be a leftist, but she’s a pragmatic one. Once she sees that this move would likely cost the Democrats control of the House, she’ll refrain.
The Senate will quickly convene confirmation hearings, and the Democrats will scream that they haven’t been given enough time to conduct their background investigation into the nominee whose background they had actually finished investigating months ago. The Republicans will shrug off their whining and proceed with the hearings. During the hearings, the Democrats will viciously attack the nominee, largely for her religious faith.
Toward the end of the hearings, the Democrats’ “news” media allies will drop some kind of bombshell “revelation” developed by the Democrats to try to destroy the nominee or at least delay the process. It’s an open question whether the Republicans will be cowed by this tactic yet again or will call it out for the dishonest tactic it is and push through. My guess is that there are enough unprincipled and spineless Republicans (I’m looking at you, Romney) to force a delay in the proceedings. The real question is whether they can push the final vote past the election.
The Republicans have until the beginning of January to confirm the nominee before the new Senate gets sworn in, but as a practical matter they need to try to get the nominee confirmed before the election. If President Trump or the Senate Republicans lose the election and the nominee has not yet been confirmed, the case against confirming the nominee will become much stronger as the Democrats will argue, reasonably, that the Republicans are defying the newly expressed will of the electorate. Nevertheless, if the nominee has not yet been confirmed and the Republicans lose, I expect them to still confirm the nominee despite the public (media-driven) outcry because, again, the stakes are too high to allow the Democrats to fill that SCOTUS vacancy.
If Trump or the Senate Republicans win the election, the Democrats will be powerless to take revenge for the SCOTUS appointment. But if the president’s nominee is confirmed and seated and the Democrats win the presidency and the Senate, they will to go nuclear.
The Democrats have threatened to eliminate the filibuster rule that requires 60 votes to pass legislation in the Senate and then pass a bill to expand the number of seats on the Supreme Court to a number that will allow President Biden to make appointments giving liberals the majority. This might sound crazy. After all, FDR tried to do that nearly 90 years ago but had to give up on that plan due to massive public outcry against it. But don’t doubt me – Today’s Democrats will do it.
Remember how no one believed the Democrats would really impeach President Trump without good cause supported by compelling evidence? Well, they did it. And they’ll do this too. And this time, unlike in the era of FDR, they’ll be able to count on their “news” media allies to propagandize the public to suppress dissent.
So, if the Democrats win the White House and the Senate, they will get their packed Supreme Court. But to do so, they’ll have to abolish the filibuster. That means that forever after, the majority in the Senate will be able to do whatever they want, and the minority will be utterly helpless to stop them – like in the House of Representatives. Personally, I’ve been calling for the abolition of the filibuster for years because it prevents Republicans from repealing all of the bad laws passed by the Democrats over the past century. So, I’d be very happy for the Democrats to be so shortsighted as to make this move. They would regret it over time.
One of the first ways they’d regret it is that when the Republicans regain the presidency and the Senate, they’ll pack the Court again with even more justices to recreate a conservative majority. (They would not be able to remove any of the new justices because once a justice is seated, his seat can’t be eliminated by Congress. The seat could be eliminated only once it becomes vacant.) But even better, the Republicans, with simple majority votes, will reverse everything else the Democrats did over the previous two years and beyond.
We live in a time when the Democrats no longer care the slightest bit about tradition, the Constitution, the rule of law, representative democracy, or the good of the country. They are so radicalized that they will do anything – literally anything – to obtain and hold power. That makes them the gravest threat to our country as a constitutional republic in our history. (Even the Civil War never created the realistic possibility that the United States would cease to exist as a constitutional republic. The only question was how many states would remain a part of that republic.)
Do not doubt that the Democrats will take the nuclear actions that I’ve described. That’s why it is imperative for the survival of our country as founded that the Democrats be defeated in this election.