There really won’t be much territory upon which we can retreat and regroup after a confirmation, especially if said confirmation occurs before 11/3/20. I have been a member of the FL Bar since 1983. I know where a lot of the bodies were buried here during the 2000 recount. A few years earlier, I worked with one of the Miami-Dade election judges who fled from Roger Stone’s rent-a-mob during the Brooks Brothers Riot.
I still have bitter memories of seeing a presidential election decided by judicial fiat then. It is reasonable to expect that, were a similar situation to present itself now, there would be 4 justices who would be willing to support the GOP nominee. It would also be reasonable to expect a newly installed Justice Barrett to be a 5th vote. C.J. Roberts might try to avoid wading in in an effort to preserve the Court as an institution, just as he did in casting the saving vote for the ACA in 2012. In this case, however, his views wouldn’t matter.
While no one ever accused our president of being a legal scholar, he does appear to understand the term quid pro quo. While there is no evidence that this nomination involved an express quid pro quo, our president has made it clear in recent days that he wants the confirmation to occur before the election and that he expects a need for judicial intervention in this election:
We need nine justices. You need that," he said. "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, they're going to be very important."
Our president may leave unimportant things, like a pandemic that has already killed over 200,000 people, to chance. He does not, however, leave important things, like a potential electoral defeat that could have adverse legal consequences for him and for his family, to chance. Given his public comments and his tendencies, it is difficult to see him choosing a nominee whom he did not expect to support his position.
To make matters worse, even a cursory review of Barrett’s writings sends a chill down one’s spine. Any attorney who reads this excerpt from one law review article that Judge Barrett co-authored in 2016 should have difficulty sleeping as one considers her pending nomination:
Commentators, who typically approach matters with the courts in mind, tend to frame this problem as one for a Supreme Court Justice. It might, however, be more acute for a member of Congress. The standard hypothetical posits an originalist Justice forced to choose between principled adherence to original meaning and compromised adherence to precedent. Yet at least in the case of so-called “super precedents”—decisions that no serious person would propose to undo even if they are wrong—an originalist justice will not have to choose between fidelity and faint-heartedness. No one is likely to ask the Supreme Court to rethink arguably nonoriginalist decisions like the constitutionality of the Social Security Administration, paper money, or segregated public schools—and if anyone did ask, the Court would deny certiorari.
An originalist member of Congress, by contrast, might have a harder time avoiding the conflict between original meaning and precedent. Congress has to decide whether to fund the Social Security Administration,2 to seat the elected representatives of the arguably unconstitutional state of West Virginia,3 and to rely on the Section Five power conferred by the possibly illegitimate Fourteenth Amendment.4 If an honest originalist must reject precedent in situations like these (assuming she decides that they are indeed unconstitutional), adherence to originalism is a recipe for folly, ending in electoral failure. If honest originalism does not require this result, the originalist must say why.
Fn. 4-See generally Thomas B. Colby, Originalism and the Ratification of the Fourteenth Amendment, 107 NW. U. L. REV. 1627 (2013) (arguing that irregularities in the ratification of the Fourteenth Amendment pose a problem for originalism).
In plain English, Judge Barrett publicly expresses skepticism about THE POSSIBLY ILLEGITIMATE FOURTEENTH AMENDMENT. Let me further explain, a pending nominee to our highest court publicly asks whether one of the central provisions underlying so much of constitutional law in this country is “illegitimate.” Any attorney who stayed halfway awake during Con Law as a 1L still recalls how many cases he/she read applying the due process and equal protection clauses of that amendment.
The cited footnote shows the basis for her public questioning of the legitimacy of the 14th Amendment. Her stated concern is that this amendment was enacted without the involvement of Confederate states that had seceded and taken up arms against the duly elected government in support of the asserted right of one race of people to own another race of people. Her concern is visibly with the rights of the former slave-owners and just as visibly not with the rights of the newly freed slaves.
Forget about whether Judge Barrett thinks that Roe v. Wade (which has a 14th Amendment foundation) should be overturned. That’s simply a starting point. There is no end to the list of settled questions that could be re-opened under this interpretation of that amendment.
Given this set of circumstances, comments like Sen. Durbin today are so troubling:
We can slow it down perhaps a matter of hours ― maybe days at the most ― but we can’t stop the outcome,” Durbin said.
It may NOT ultimately possible to stop this nomination, but there’s no reason for the Dem Whip to go on national TV and throw in the towel in advance. Plus, there have been plenty of suggestions offered as to how procedural roadblocks could be raised:
Normally, the Senate runs quickly thanks to the use of unanimous consent, which is when no senator objects to the rules for a bill’s consideration on the floor. Refusing unanimous consent would force the Senate to debate and vote on minor motions.
Demand Progress, a progressive activist group, is already running a petition calling on voters to contact their senators and demand they commit to refusing unanimous consent.
“We need Senate leadership to have a war room posture,” David Segal, executive director of Demand Progress, said.
Once unanimous consent is denied, the Senate requires a quorum of 51 senators to conduct business. Activists say Democrats should force Republicans to meet that quorum requirement by themselves, without any Democratic help, each time unanimous consent is denied. This would mean Republicans would need at least 51 members in Washington, D.C., to move anything through the Senate. Since the Republican caucus has 53 members, only two of the seven senators facing difficult re-election races could be absent at any time.
This piece sets forth additional ideas:
Speaking at Length — In the absence of a unanimous consent agreement governing time to debate or cloture, a Senator who gets recognized to speak can speak at length.
Objecting to Routine Consent Agreements — Any Senator may object to routine unanimous consent agreements, such as those to adjourn, to recess, to approve the Journal, or to dispense with the Morning Hour. Forcing roll-call votes on routine motions to adjourn or recess would require Senators to come to the Capitol and also prevent the Senate from taking other action during the time that it would take for Senators to come to vote.
New Legislative Day — If the Senate adjourns without a unanimous consent agreement providing for the handling of routine business at the beginning of a new legislative day, a new legislative day starts with the morning hour, a 2-hour period with a number of required procedures. As part of the morning hour, any Senator could make a non-debatable motion to proceed to an item on the Senate calendar.
Objecting to Lifting Quorum Calls — Any Senator can object to unanimous consent to lifting a quorum call, forcing a recorded vote that would require Senators to come to the Capitol and also prevent the Senate from taking other action during the time it takes for Senators to come to vote.
Motions to Adjourn and Recess — Any Senator can move to adjourn, to adjourn to a day certain, or to take a recess. All of these motions take precedence over a motion to proceed to the consideration of a nomination. Senators could make a series of motions of this sort to force roll-call votes.
Perhaps stalling this nomination might only delay the inevitable. Then again, perhaps stalling it to the lame duck session would make it more difficult for the nomination to be confirmed, especially with the AZ special election. Delaying it would make it more difficult for Judge Barrett to sit on presidential election cases. With the ACA case set for oral argument on 11/10/20, delaying a Senate vote could make it difficult for the ACA to be overturned.
The consequences of a quick Barrett confirmation will be dire. it must be fought by any legal means necessary. No procedural roadblock should NOT be thrown in front of it. If those roadblocks are ultimately overcome and Justice Barrett is ultimately seated, so be it. The effort will have been made and the GOP can be made to pay the maximum political price.
No Dem senator (especially one in a leadership position) should make any public confessions of defeat in a battle that has not yet started. Every Dem senator should exercise every procedural lever at his/her disposal to stall this nomination for every day possible. The likely consequences of failure are far too high to act otherwise.
EDIT: If the 14A is “possibly illegitimate,” then logic dictates that the 13A, which was also enacted without the involvement of Confederate states, is also potentially illegitimate. I would like someone to ask Judge Barrett whether she believes that the slaves should have been constitutionally freed without the consent of the Confederate states.
I further note that the “corporate personhood” doctrine that underlay Citizens United and other equally odious decisions comes from the 14A. If the 14A is potentially illegitimate, then so is Citizens United.
EDIT II: Every day that the likes of L. Graham (who’s fighting for his political life) has to spend dealing with procedural issues on the Hill is 1 less day he can spend campaigning in SC. Same goes for other GOP incumbents up for re-election. That’s an additional benefit.
