Can the Democrats turn the tables on Trump in supreme court battle? | Law


Hard numbers suggest that the fight over the nomination of the conservative Catholic judge Amy Coney Barrett to the US supreme court is over before it begins. The 53-47 Republican majority in the Senate is solidly in favour of Donald Trump’s preferred replacement for the late Ruth Bader Ginsburg – and according to the constitution, it is the Senate, not the Democrat-controlled House of Representatives, that decides. There appears to be little the Democrats can do. But is that true?

Get out the vote

Polls show most voters believe Ginsburg’s replacement should be selected by whoever wins the White House, with independent (uncommitted) voters especially strongly opposed to a rushed process.

A Washington Post-ABC News survey found a 58-37% split in favour of delay among all adults. If Republicans defy public opinion and push through a final vote before the 3 November election, Democrats may begin to pick up critical support in several tight Senate contests. In such a scenario, the GOP may delay the final Senate vote until after the election. And if, as seems likely, the election result is itself disputed (and goes to the supreme court for a ruling, as in 2000), politics will freeze – and almost anything could happen. Another worry for Trump: 64% of Democrat voters say the prospect of a reinforced conservative supreme court majority has made it “more important” that Joe Biden wins, as against 37% of Republicans who say the same for Trump. The president is already in trouble with non-religious white suburban women voters, many of whom view him as a misogynist hostile to women’s rights, such as abortion. By energising such opposition, the nomination could backfire on Trump.

Change the rules

Even if Barrett’s nomination is confirmed, the Democrats may pursue a number of reforms, without reference to the Supreme Court, that could prevent the Republicans manipulating the electoral system (and thus judicial appointments) in future – and retroactively redress the court’s political balance. One such reform would be a strengthening of the 1965 Voting Rights Act to ensure universal registration and to stop partisan congressional redistricting and vote suppression practices that discourage voting by ethnic minorities in poorer, pro-Democrat areas. Another badly needed measure is an overhaul of the outdated voting system itself, for example to avoid future controversies over postal voting, currently being exploited by Trump. Big snag: in order to implement these and similar measures, the Democrats would need majorities in both houses of Congress, and control of the White House. But proponents say that if that outcome is achieved in November, there must be no hesitation. Democrats, they say, must learn to be as ruthless as their opponents.

Move the goalposts

More radical proposals under discussion include action by a Biden presidency to expand the supreme court bench from the current nine justices to 11, which could go some way towards mitigating the prospective 6-3 conservative majority (assuming Judge Barrett is confirmed). Even more dramatic is a proposal to grant statehood to the District of Columbia, which includes the city of Washington, and to the “unincorporated territory” of Puerto Rico. The disenfranchised African-American and Latino majority in Washington DC has long campaigned for statehood, viewing its denial as discriminatory. With 3.2 million inhabitants, Puerto Rico is more populous than 20 mostly Republican-voting rural states. If both acquired statehood, the 100-seat Senate would gain four, most likely Democrat senators.


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