I am worried. VERY Worried. As frightening this ongoing pandemic is, I am confident we will survive it. It would help tremendously, of course, if our government would follow science and medical experts rather than political fantasy, but even with leadership incapable of speaking the truth, we will adapt and survive. And the devastation of the fires here in Oregon, leaving thousands of people suddenly homeless, is an enormous challenge that will be extremely difficult to meet, but I have confidence in the compassion and empathy of Oregonians that will not leave our neighbors stranded and without hope.
This latest crisis is different. While I am generally an optimistic person by nature, and still believe that Kenny Wheaton is going to make that interception to save our team in the final seconds of the game — never mind that Kenny himself has long since retired from the game, my cell phone still shouts out, “Kenny Wheaton is going to score!” every time I get a call — it is hard to see who will prevent the coming disaster from undermining the very basis of democracy in this country.
It is bad enough that we have a President who continually and frequently questions the integrity of the voting process without any legitimate basis, facts or evidence, the designers of our constitution gave us two other equal branches of government to provide a built in system of checks and balances. Why three? Because two branches will inevitably lead to a power struggle that can only end in failure. The third branch, a relatively independent judicial system (we hope!), is perhaps the greatest genius of our founders.
Yes that system is stacked in all kinds of ways which protects those who hold the power and money more than the rest of us, a power imbalance that was made all the more egregious by the Citizens United case, but even so, it has also done much to right a few wrongs, undoing the notion of “separate but equal” in segregated education and providing marriage equality for LGBTQ couples, just to give two examples. And while those on the left as well as those on the right have their grievances with decisions of the Supreme Court, those decisions ultimately are dependent on a recognition of the legitimacy of the court by the public.
Hence Chief Justice John Roberts rightly came to the defense of the institution when President Trump attacked one of his colleagues as “an Obama judge.” Said the Chief Justice, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” Unlike legislatures, Roberts went on to note, “We do not sit on opposite sides of an aisle. We do not caucus in separate rooms. We do not serve one party or one interest. We serve one nation.”
The very untimely death of Justice Ruth Bader Ginsburg, may her memory be a blessing, just six weeks before the election has set in a motion a series of events which threatens that notion and, depending on the outcome, could destroy any notions of that independence and make the Supreme Court the servant not of one nation but one party. And that is very worrisome for all parties.
Imagined this scenario. A new justice is confirmed before the election after a brief and bitter fight in the Senate. On the night of Nov. 3 the President, as in 2016, is losing the popular vote but leads in enough states to achieve the magic 270 electoral votes and, therefore, declares a victory which can only be overturned by “rigged” mail-in ballots. Sure enough, when all the votes are counted a day or two later, the election swings the other direction. Lawsuits quickly follow and end up in the Supreme Court which invalidates the vote in some state, Florida comes to mind for some reason, and declares Trump the winner of the election. The vote is 5 – 4 with the Chief Justice siding with the minority and the newly confirmed Justice Amy Coney Barrett casting the deciding vote. Not only is that scenario easy to imagine, it has a very high probability. The only question will be, will Judge Barrett have the integrity to recuse herself? Perhaps, but the anger and vitriol that would then be directed at her I would not wish on anyone.
The 2000 election was decided in a similar scenario. The major difference between then and now is the perceived legitimacy of the Supreme Court and the willingness of Vice President Gore to concede the election. Because of the way in which Senate Republicans blocked the nomination of Merrick Garland four years ago and now are fast-tracking the confirmation of Judge Barrett, her presence on the Supreme Court will lack legitimacy for the majority of the U.S. electorate if confirmed before this election is decided. If Democrats gain the majority in both houses of Congress, or more accurately I should say, when the Democrats gain the majority in both houses, if not in this election then in a future one, they may very well expand the Supreme Court to 11, 13 or even 15 members. Any cry of “foul” will sound hollow after the actions of Mitch McConnell, and rightly so. And then when Republicans next gain control of both houses, they will respond in kind. And so the independence of the court will be completely destroyed, and American democracy itself will quickly follow.
Making this situation all the more worrisome was tonight’s dismal debate in which the President refused to say that he would urge his supporters to remain calm as elections results are being tallied or that he would accept the results of the election as determined by the independent bodies in each state that oversees them. Instead, he insisted as he has before that he would only accept it if it is “free and fair,” leaving him rather than the states as the one who will make that judgment. Does anyone believe that he will accept the results if he loses due to mail-in votes?
This is beyond worrisome, it is the gravest threat to our democratic institutions since the Civil War. I never understood how Germany allowed Hitler to take over the country, until now. We are at that moment when the Reichstag only needs someone to light the match, and it will all burn down.
So my forecast for our immediate future is dire — the political unrest that is bound to happen if the nomination of Judge Barrett proceeds and Trump refuses to accept the results of the election will be the greatest we have faced since the 1960s and maybe much worse. I have but one hope, that those who love democracy will once again follow the example of Martin Luther King, Jr. and engage in massive, non-violent resistance to the obvious efforts of both McConnell and Trump to thwart the will of the people. It may be the only thing that can prevent the coming calamity.
In the mid first century of this Common Era, the Roman government in Palestine attempted to place standards of the Roman empire in the temple in Jerusalem. Such was an enormous violation of Jewish belief, but what could they possible do against the overwhelming power of Rome? Hundreds of Jewish citizens presented themselves to the Roman governor, prostrated themselves with their necks bared to Roman swords. Kill us, they said, we’d rather die than worship before false gods. And there they remained until the governor agreed to withdraw the Roman standards.
We have come to such a moment when the standards of a political party are being erected in the sacred hall of the highest court of the land, violating the covenant made by our country’s founders with the citizens of this land. Those standards must not be allowed to stand or our democracy will fall. It is imperative, therefore, that we bare our political necks for the future of our country. Would that the Notorious, Jewish RBG were still with us. May her memory bring a revolution.
Photo credit: Erin Schaff | Reuters
Thanks Dan. I appreciate your words.