On Friday evening, CNN, the New York Times, and other media outlets reported that Donald Trump had told associates that he has chosen Judge Amy Coney Barrett, a prominent social conservative, to replace the late Justice Ruth Bader Ginsburg on the Supreme Court. Although Trump’s choice of Barrett—whom he appointed to the Seventh Circuit Court of Appeals, in 2017—wasn’t unexpected, it’s sure to escalate the bitter political conflict surrounding the Republican effort to rush a nomination through the U.S. Senate less than forty days before the election.
Right now, it looks like Mitch McConnell, the Senate Majority Leader, has the votes to do that. The brazen and unapologetic nature of this G.O.P. power play is fanning perfectly justified outrage, and the selection of Barrett—who has ruled in favor of restrictions on abortion and who once served as a law clerk to Justice Antonin Scalia—as a replacement for a liberal icon will further inflame passions. The nominee is expected to appear alongside Trump at the White House on Saturday afternoon. Some Democratic senators have openly considered boycotting the confirmation hearings, which would be unprecedented, at least in the modern era.
With the first Presidential debate, on Tuesday, set to add to the political tension, the next few weeks will be fast-moving and nerve-racking. But it is worth first stepping back and considering the larger context in which all this is taking place. If the aftermath of Ginsburg’s untimely death has taught us anything, it’s that the antiquated institutions of American democracy are in urgent need of repair—that is, if the country can get through the next couple months with these institutions still intact, which at times this week hasn’t always seemed like a given. The alternative to wholesale reform is almost too ghastly to contemplate: the continuation and intensification of a years-long effort to consolidate minority rule. For, when you strip away all the diversions and disinformation, that is the project that the Republican Party and the forty-fifth President are engaged in.
According to a new poll from ABC News, which was released on Friday, fifty-seven per cent of Americans think that the job of selecting Ginsburg’s replacement should be left to the next President; only thirty-eight per cent think Trump should make the pick. Other surveys have found similar results. The data site FiveThirtyEight examined twelve polls and found that, in the aggregate, fifty-two per cent of respondents favored waiting until after the election to fill Ginsburg’s seat, while thirty-nine per cent said that Trump should fill it immediately.
This is just the current anti-democratic outrage. When you consider the combined influence of the Electoral College and the Senate, both of which amplify the power of Republican voters living in less densely populated parts of the country, the empowerment of the minority—an overwhelmingly white and conservative minority—goes far beyond this instance, egregious as it is.
If the Senate confirms Trump’s nominee, five members of the Court will have been selected by a President who initially won the White House while losing the popular vote. George W. Bush nominated John Roberts, the Chief Justice, and Samuel Alito; Trump picked Neil Gorsuch and Brett Kavanaugh, and will soon nominate Barrett. To be sure, Bush’s two picks came during his second term, which followed a handy popular-vote victory over John Kerry, in 2004. But Bush wouldn’t have been running in the 2004 election as an incumbent if the 2000 election had been decided on the basis of who received the most support nationally. In the popular vote, Al Gore beat him by more than half a million votes.
Why bring up an event that, to younger readers, may seem like ancient history? Because, in this country, American history isn’t something that resides solely in the past. With the nation’s early years having bequeathed to posterity an unrepresentative Electoral College and an unrepresentative U.S. Senate, this history is ever present—shaping some outcomes, ruling out others, and exercising a baleful influence that politicians of bad will, such as McConnell and Trump, can seize upon to further entrench the minority of which they are very much part.
After all, McConnell’s status as the Dark Lord of Capitol Hill depends on a political system that affords the same number of senators to California (population 39.1 million) as it does to Wyoming (population 0.6 million). According to the Real Clear Politics poll average, Trump is trailing Biden by 6.7 percentage points, and he’s been well behind all year. At this stage, his hopes of getting reëlected hinge almost entirely on cobbling together another majority in the Electoral College, to negate the expressed will of the majority. In trying to do this, he has amply demonstrated his willingness to rely on voter suppression, challenge legitimate mail-in ballots, and even possibly call upon Republican legislatures to set aside their states’ election results and appoint slates of loyalist electors to the Electoral College. (In the magazine this week, my colleague Jeffrey Toobin wrote about all these possibilities.)
When points like these are put to Republicans, some of them reply that this is a republic rather than a democracy, which is conceding the point. A somewhat more sophisticated argument is that the United States is a representative democracy rather than a direct democracy, and that the Founders expressly designed the seemingly anti-democratic elements of the political system to protect minorities and prevent mob rule. The proper response to this argument is to invoke actual history rather than fables.
The Founders were men of property and eighteenth-century views. In his book,“The Framers’ Coup: The Making of the United States Constitution,” from 2016, Michael J. Klarman, a professor at Harvard Law School, explains that they “had interests, prejudices, and moral blind spots. They could not foresee the future, and they made mistakes.” Largely drawn from the landed class, they had little interest in empowering the common man, and no interest at all in empowering women and Black people. But, unlike many latter-day “constitutionalists,” they were aware of their own shortcomings. Although they tussled long and hard over the system they created, they didn’t consider it a perfect solution or something that couldn’t be altered in the future, depending on the circumstances and exigencies of the time. “As Jefferson would have recognized,” Klarman writes, “those who wish to sanctify the Constitution are often using it to defend some particular interest that, in their own day, cannot be adequately justified on its own merits.”
In the nearly two centuries since Jefferson’s death, some of the more objectionable aspects of the system that he helped to create have been reformed and updated. It is our misfortune to be living through a period in which Trump and his allies are busy exploiting the system’s remaining weaknesses for their own iniquitous and anti-democratic ends. Disturbing as it is, the rushed nomination of Amy Coney Barrett is but one part of a bigger and even more alarming story.
