Wayne O'Leary

The Dark Shadow Descends

The incredibly untimely passing of Justice Ruth Bader Ginsburg points up how Republicans have managed, in essence, to run the country for several decades while remaining an unpopular minority. What Republicans know is this: Whoever controls the courts controls everything in the public sphere.

Before Justice Ginsburg was even eulogized and interred, Donald Trump, our classless chief executive, announced he wanted a replacement forthwith, and Senate Majority Leader Mitch McConnell said he would make it happen before the Donald’s term was up. Republicans don’t stand on ceremony, and they won’t in this case. This is the same McConnell, remember, who informed Barack Obama in February of 2016, Obama’s last year in office, that his Supreme Court nominee Merrick Garland couldn’t possibly receive a confirmation vote before the upcoming election, nine months away. The people hadn’t yet spoken, said Mitch.

So, barring unforeseen developments, Ginsburg’s replacement will be rammed through before the end of the year, giving the GOP a 6-3 Court majority. It will be a solidly right-wing replacement; the conservative Federalist Society, which vets all Republican judicial appointments, has seen to that. In US Circuit Judge Amy Coney Barrett, Trump’s selection, it has approved an intellectual clone of Antonin Scalia (her mentor), a convinced originalist and textualist who represents the current judiciary’s hard right; she is pro-life, pro-gun and anti-ACA.

The Federalist Society, an extremist legal organization founded by Reaganite ideologues in the 1980s, has already given us Justices Brett Kavanaugh, Neil Gorsuch, John Roberts, Samuel Alito and Clarence Thomas. Democrats have nothing comparable to this partisan training ground for judicial activists; they rely on the neutral American Bar Association to weed out unqualified nominees.

When GOP presidents select prospects for the highest court or the appellate courts, they follow Federalist Society recommendations based on strict adherence to conservative principles and jurisprudence; when their Democratic counterparts select judges, the only obvious consideration is what social-identity group (gender, ethnicity, etc.) requires affirmation or recognition. Legal philosophy, other than the desire for a “moderate” candidate, is usually irrelevant.

The Democratic approach is in keeping with the almost total focus of the party and its feminist clientele on abortion rights and Roe v. Wade, the one legal litmus test for liberals. When it comes to judicial nominees, nothing else seems to matter, which explains why Democratic officeholders and voters don’t care much about the Supreme Court and rarely follow its proceedings, while Republicans care about little else. As a result, we’ve experienced decades of high-court decisions favoring business, corporations, propertied interests and the rich combined with decisions unfavorable to workers, unions, consumers and the poor.

Expect more of the same now that Ginsburg is gone and with her the bare 5-4 conservative majority susceptible to occasional “swing” votes in favor of progressive positions. The Court is now 5-3 and counting, shortly to reach an unassailable 6-3 conservative margin. Separation of church and state is on the critical list, as are voting rights, workers’ rights, reproductive choice and Obamacare, the last-named on the docket for probable termination. Citizens United, which overruled restrictions on corporate involvement in politics, remains unthreatened, however.

For the moment, liberals may be able to stave off disaster by arguing that a confirmation vote shouldn’t take place so close to an election. Republican senators on the political bubble, including Daines of Montana, Tillis of North Carolina, Graham of South Carolina, Ernst of Iowa, McSally of Arizona, Gardner of Colorado, and Collins of Maine — especially Collins, she of the practiced fake-bipartisan stance — may cause a postponement until after Nov, 3. Thereafter, however, they will have nothing to lose, and the McConnell steamroller can roll unimpeded. (Collins, maneuvering desperately, has publicly conceded that Ginsburg’s replacement should be picked by the winner of the November election.)

Donald Trump has a major stake in the outcome. His acolytes are steadily pushing him down the authoritarian road toward neo-fascism, and he’s offering no resistance; there’s evidence, in fact, that it’s where he wants to go. Administration threats, some implied and others literal, are skirting the thin edge of constitutionality, and in some cases brazenly crossing over the line.

Roger Stone, longtime Trump associate, whose conviction for fraud and public corruption was commuted by the president, has called upon him to declare martial law against his enemies. Chad Wolf, director of the Department of Homeland Security, has used his agency to carry out Trump’s agenda; he’s dispensed armed enforcers to protest sites to heavy-handedly impose “law and order” and employed customs personnel to harass undocumented migrants, while ignoring at the same time foreign interference in our domestic elections. Trump-anointed Postmaster General Louis DeJoy has openly disrupted and sabotaged the US Postal Service to frustrate voting by mail, improperly slowing mail-order deliveries of medicine in the process.

Then, there’s Attorney General William Barr, the nation’s rotund chief lawyer turned Trump attack dog. Barr, espousing a maximalist view of executive power under the Constitution, believes there are no limits to what his boss can do to impose on the country at large right-wing policies that conveniently mesh with the Christian-conservative social values of his core supporters.

In a reprise of the odious regime of Edwin Meese, hard-line attorney general under Ronald Reagan, Barr is carrying out a divisive campaign of anti-secularism, narrowly construed public morality, an unprecedented melding of church and state, and police-state law enforcement, including proposed application of revived sedition laws. He wants nothing less than a judicially endorsed culture war with the liberal left.

Trump himself has signaled a likely refusal to abide willingly by the results of the upcoming presidential election, should he lose the balloting. This alone would precipitate a constitutional crisis unlike anything since the Civil War. If it comes to pass, the Supreme Court, packed with Trump appointees, will be front and center in addressing the emergency and resolving it — American democracy’s flimsy last line of defense.

Assuming the acquiescence of a conservative-dominated Court that either rubber stamps the abusive actions of Trump administration officials in lawsuits that are sure to come, or approves the continuation of a popularly defeated Trump in office by means of a Bush v. Gore decision on legal steroids, political remedies will absolutely be in order. These might include expanding the size of the Court, or mandating term limits for justices. Whatever the solution, changes will have to come.

Wayne O’Leary is a writer in Orono, Maine, specializing in political economy. He holds a doctorate in American history and is the author of two prizewinning books.

From The Progressive Populist, November 1, 2020

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