Democrats are justifiably upset about the extreme haste with which the Trump White House and its Senate allies are rushing to fill the Supreme Court vacancy opened up by the death of Ruth Bader Ginsburg. As of this morning, Trump hasn’t even announced a nominee, but senators like Lindsey Graham of South Carolina are assuring the public that Trump’s choice will be confirmed, making a hash of the constitutional role of “advise and consent.” It’s likely that the eventual nominee will take the seat before the next inauguration—and quite possibly before the presidential election.
There’s plenty of procedural grounds for objecting to this sprint to the highest court in the land, not least that it violates the principle many Republican senators had previously affirmed that there be no confirmation in the last year of a presidential term.
But leaving aside constitutional and procedural objections, there’s also the sinister fact that Trump is openly talking about shaping a court in preparation for a legal fight over the November election.
Speaking to the press on Wednesday, Trump said, “We need nine justices. You need that. With the unsolicited millions of ballots that they’re sending, it’s a scam. It’s a hoax. Everybody knows that. And the Democrats know it better than anybody else. So you’re gonna need nine justices up there. I think it’s going to be very important because what they are doing is a hoax with the ballot.”
Nor can Trump’s words be dismissed as empty bluster of the type he’s often prone to. On the same day Trump spoke, Vice President Mike Pence appeared on the Lou Dobbs show on Fox News and made a similar argument. “With all of the talk about universal unsolicited mail-in ballots where we see states across the country extending the deadline, there is a possibility that election issues may come before the Supreme Court in the days following the election,” Pence claimed. “All the more reason why we should have nine justices on the Supreme Court to be able to resolve any issues that may arise then or on any other matter.” A just-published story in The Atlantic documents that Republican officials are “discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority.”
Commenting on Trump’s words, former Washington Post reporter Matt O’Brien noted on Twitter that “Trump is like a Bond villain who can’t help but tell us about his plan to rig the election. That’s telling his supporters to vote in person so he wins the votes…cast on Election Day itself & then suing to stop absentee ballots from being counted. Bush v Gore 2.0 is the plan.” New York Times columnist Jamelle Bouie came to the same assessment of Pence’s words: “Their plan to ‘win’ the election is Bush v. Gore on steroids.”
With Pence making the same arguments as Trump, we can safely conclude that O’Brien and Bouie are right: The Republicans are attempting a reprise of Bush v. Gore, the infamous 2000 case that allowed a Republican majority on the Supreme Court to shut down a recount in a close election and anoint George W. Bush as president.
One difference is that in Bush v. Gore, the court’s intervention was in the Florida recount. In the current election, the plan seems to muddy the waters while the count is happening. Then Trump could declare a premature victory (as Bush did on the night of the election), causing further confusion.
Voting is already being shaped by ongoing litigation in many states. The problem with Pennsylvania’s ballots offers a foreshadowing of potential Election Day chaos. As CNN reports,
Philadelphia’s top election official is warning that thousands of mail-in ballots could be thrown out in November unless changes are made to rules around ‘secrecy envelopes’—second sleeves that help prevent poll workers from seeing how someone voted. The Pennsylvania Supreme court ruled last Friday that officials can reject so-called naked ballots that are received without the secrecy envelope. State election officials had previously provided guidance telling counties to count naked ballots.
Based on previous elections, there could be 100,000 ballots tossed out. In 2016, Donald Trump won Pennsylvania by fewer than 45,000 votes.
A reprise of Bush v. Gore isn’t inevitable. Since the 2000 debacle, Democrats have strengthened their legal game and are winning significant victories in court battles. Further, if Biden wins a convincing victory on election night in both the popular vote and the Electoral College, it’ll be virtually impossible for the courts to steal the election. Recent polls for Biden have been steadily robust on the national level as well as in swing states.
Still, Democrats can’t put their faith in a best-case scenario and should prepare for legal shenanigans. One key factor is being ready to challenge the legitimacy of the courts if they do intervene in a grossly partisan manner. This is something that Al Gore singularly failed to do in the 2000 election. He put maintaining popular faith in the legitimacy of the system above his own personal ambition. If he had wanted to, he could have mobilized popular protests to support a recount. Instead, the only protesters were paid agents of the Republican Party, in the notorious “Brooks Brothers riot” that stopped the recount.
Gore made a costly mistake. Biden can’t afford to repeat it. One way to avoid Gore’s failure is to prepare the public to be skeptical of the court. The current Supreme Court fight has to be waged not just in terms of abstract principles but also in bluntly partisan ones. The Biden campaign should make the case, amply supported by the words of Trump and Pence, that the current Supreme Court fight is motivated by a desire to rig the election.
There are many reasons Donald Trump shouldn’t be allowed to choose the next Supreme Court justice. One of the most important is that Trump can’t be permitted to the steal the presidency with the help of the courts.