“The Supreme Court doesn’t have an army, and it has no power of the purse. Its power comes from the fact that the public accepts its decisions, even when it disagrees with them. The Supreme Court has of course always been a political institution, but if it’s going to retain its public legitimacy it can’t be seen as simply another wing of partisan politics. Supreme Court nominations have become far too politicized, but packing the Supreme Court weeks before a presidential election is different in kind. It’s not simply another stress test for our institutions — there’s a real risk it will break them. That is genuinely scary — not just for the Supreme Court, but for the basic functioning of our country and the rule of law.” — Alice Bannon, managing director, Brennan Center’s Democracy Program
The Trump administration and Senate leadership have spent the past four years cramming the Supreme Court and lower federal courts with ideologues intent on eradicating hard-fought civil rights and constitutional gains of the past few decades.
They’ve made no effort to respect the racial and gender diversity of our nation. Nearly 90% of his nominees to lifetime judicial appointments have been white and 76% of them are men — a reversal of a 30-year trend toward more diversity on the federal bench and erosion of judicial legitimacy that is unprecedented in recent American history.
The confirmation of Amy Coney Barrett to the United States Supreme Court will mark the point of no return for the independence of the federal judiciary.
While Judge Barrett may qualify by training and experience, she was nominated by the president because she passed a litmus test for judges likely to severely limit or overturn the Affordable Care Act, civil rights and voting rights, and women’s reproductive freedoms enshrined in Roe v. Wade and successor cases. Among the first cases a new justice will face involves a demand by the Trump Justice Department to repeal the ACA in its entirety, along with election challenges that could determine whether the president who appointed her is reelected.
Trump has said the quiet part out loud. He makes no secret of the fact that he expects the court to decide these election lawsuits in his favor and strike down the law that provides health care to millions of Americans during a deadly pandemic.
This administration inherited more than 100 federal court vacancies because during President Obama’s second term the Senate abandoned its constitutional role in the lower court confirmation process — just as it did by refusing to consider President Obama’s nomination of Merrick Garland to the Supreme Court.
This administration has now appointed, and the Senate has confirmed, more than 200 life-tenured judges. Americans are, right now, in the process of electing a new president. Never has the Senate confirmed a new Supreme Court justice during a general election that will decide the presidency. The undemocratic rush to confirm this justice is part of a scheme to create a conservative supermajority on the court that could overturn the will of a majority of Americans for decades to come.
What do African Americans have to lose with a supermajority of conservative extremists on the court? Monday’s appalling ruling by the U.S. Circuit Court of Appeals in Texas is a prime example of how rank partisanship has infected the federal courts, obliterating any pretense of judicial objectivity and the rule of law. The three-judge panel — all appointed by this administration and confirmed along political party lines — upheld the governor’s decision to create a single ballot collection site for each county, including a single site for five million voters in a landmass larger than Rhode Island.
If the Supreme Court can sanction this kind of political manipulation, there are no limits on the rampant voter suppression we can expect in November’s election and years beyond.
The contempt this administration and Senate leadership have for the will of the voters and the constitutional responsibilities of Congress is nothing short of breathtaking.
Even as a growing majority of citizens have loudly voiced their demand for racial and economic justice, firm enforcement of civil and individual rights, and the security of health care under the Affordable Care Act, Judge Barrett’s lifetime appointment to the Supreme Court represents a trampling of those demands.
History will not look favorably on what the Senate leadership appears poised to do. There is one last chance for them to honor their oath of office and the will of the American people and reject the nomination of Amy Coney Barrett.
Morial is president and CEO of the National Urban League.