Amy Coney Barrett has begun her tenure as an illegitimate justice on the Supreme Court, which has been diminished by the antidemocratic charade that saw Senate majority leader Mitch McConnell elevate a right-wing judicial activist in a mad rush to avoid electoral accountability.
These are the facts that should be acknowledged in every media report on the rule-shredding process that concluded Monday evening with the Senate’s confirmation of President Trump’s third Supreme Court nominee by a 52-48 vote. The Senate vote hugged party lines. Every Republican except Maine’s Susan Collins backed Barrett, while the 48 “no” votes came from 46 Democrats, two independents who caucus with the Democrats, and the embattled Mainer.
But another set of numbers explains Barrett’s illegitimacy—and demands a reckoning on November 3.
The 52 Republicans who voted to confirm Barrett represent states that are home to just 152 million Americans, while the 48 votes against her confirmation represent 170 million Americans.
The Senate that confirmed Barrett is an unbalanced chamber, and Republicans have exploited that imbalance to impose their will on the country—not for a few months or a few years but for a few decades. Republicans moved with reckless haste to confirm Barrett because they know the arc of history is bending against them. In 2016, 51.5 million voters (56 percent) backed Democrat Senate candidates while just 40.4 million supported Republicans. In 2018, 52.3 million voters (60 percent) cast their ballots for Democrats while just 34.7 million voted Republican. There is reason to believe, though, that the 2020 election could rebalance the Senate to better reflect the will of the people.
“The reason the Republicans were willing to break every rule to jam through an illegitimate nomination eight days before the election is that they have realized a truth that shakes them down to their core: The American people are not on their side,” explained Senator Elizabeth Warren.
McConnell won’t admit it. But he knows Warren is right.
As the leader of a “majority caucus” that represents a minority of Americans, McConnell acknowledged Republican infamy on Sunday. Gleefully celebrating the theft of another court seat, he said, “A lot of what we have done over the last four years will be undone sooner or later by the next election. It won’t be able to do much about for a long time to come.”
Voters were choosing the next Senate as he spoke. In barely a week, McConnell could be a lame-duck leader. If Democrats secure a net gain of four seats on November 3, as polls suggest is possible, they will have clear control of the chamber. If Biden’s elected and Democrats gain three seats, then Vice President Kamala Harris will be able to break ties and give Democrats the upper hand.
McConnell and Senate Judiciary Committee chair Lindsey Graham of South Carolina know their power is threatened. That’s why they were so desperate to confirm Barrett before Election Day. But in their rush, McConnell and Graham failed to provide credible advice and consent, rejected basic premises of a system of checks and balances, and delegitimized Barrett. Instead of waiting for an election that will in short order confer the authority to nominate and confirm a justice who is otherwise unaccountable to the people, a president who lost the popular vote nominated Barrett and a Senate that does not represent the majority of Americans confirmed her.
They took advantage of the fact that the Constitution—despite amendments that have extended the franchise to those who were once enslaved, to women, to people who cannot afford to pay poll taxes, to citizens aged 18–21—still does not guarantee democratic results. Even though most Americans vote for Democratic Senate candidates, their will has been thwarted: A Republican senator elected with 136,210 votes from Wyoming is able to cancel out a Democratic senator elected with 7,542,753 votes from California.
That inequity will not be addressed by this election. But the stark imbalance that empowers McConnell could be—and if it a long-delayed debate about reforming the courts could finally be opened.
This is why Senate races are the essential 2020 contests for Americans who are furious not just with the process that has put Barrett on the Supreme Court but with all of the damage McConnell and his cronies have done to the courts—and to the country—for years.
Biden and vice presidential nominee Kamala Harris, a member of the Senate Judiciary Committee, should incorporate righteous indignation over Barrett’s illegitimacy into a closing message about restoring small-“d” democratic balance to the Senate.
The way to do this is by talking about specific Senate races and specific candidates.
Biden was in Georgia Tuesday, where he appeared with Democratic candidates Jon Ossoff and the Rev. Raphael Warnock—both of whom could seize seats from a pair of Republicans who voted to confirm Barrett. On Friday, Biden will be in Iowa, where he can talk about why Democrat Theresa Greenfield must unseat Barrett enthusiast Joni Ernst. That same day, Harris will be in Texas, where Republican Senator John Cornyn could be displaced by Democrat M.J. Hegar.
Georgia, Texas, and Iowa have emerged in recent weeks as presidential battleground states on an expanding map for the Democrats. So those visits by Biden and Harris are strategic on multiple levels. But the candidates and the party have the chance to turn up the volume on messaging to states that are not necessarily presidential battlegrounds but where Republican Senate seats could be flipped, such as Montana, Kansas, Graham’s South Carolina, and McConnell’s Kentucky. Even where Biden and Harris cannot make physical stops, they can mobilize potential Democratic voters with media appearances targeted to boost the whole Democratic ticket.
A Republican majority representing a minority of Americans has installed Amy Coney Barrett on the high court. She will serve as an illegitimate justice.
Now, Democrats must channel that frustration into a November 3 result that upends the democratic imbalance that allowed Mitch McConnell and Lindsey Graham to pack the court.