By Rudy Barnes, Jr.
The current partisan uproar over filling a vacancy on the U.S. Supreme Court is overblown, but it’s evidence of a very real constitutional crisis. It’s caused by polarized partisan politics that have paralized Congress and given President Trump an opportunity to exploit those partisan divisions to circumvent the Constitution and promote his own power.
The checks and balances in American democracy depend on the separation of powers in the Constitution. Article I gives Congress the power to make laws, and Article II gives the president power to execute those laws. Article III gives federal courts jurisdiction over disputes involving federal law, and gives the Supreme Court the final word on constitutional issues.
A breakdown in the functions of the three branches of government would create a constitutional crisis. It could be caused by a Congress too polarized by partisan politics to function, a president determined to expand his power, and a Supreme Court compliant with an unconstitutional expansion of the president’s power.
Only voters can prevent such a constitutional crisis. They must elect members of Congress and a President who are committed to preserve and protect the Constitution. Those who put divisive partisan objectives ahead of promoting a politics of reconciliation and providing for the common good are undermining America’s constitutional democracy.
Not much can be done between now and November 3. If Biden wins and there is a peaceful transition of power, and if Congress can overcome its partisan paralysis, America can preserve its constitutional democracy. If Trump wins, all bets are off. A compliant Supreme Court could legitimize an imperial presidency with few constitutional checks and balances.
Perhaps the greatest threat to America’s constitutional democracy is Trump’s refusal to commit to a peaceful transition of power if he loses the election, and his threat to contest any loss in courts where he has appointed a record number of judges. Those are direct threats to constitutional democracy, but Trump’s 40%+ base of supporters continue to support him.
Even if Biden wins and can assume the presidency, Congress must overcome its partisan paralysis to provide constitutional checks and balances. It may take a third party to break up the deadlock in Congress; but preserving a constitutional democracy will also take a Congress willing to subordinate divisive partisan issues to providing for the common good.
America’s polarized partisan politics will lead to a constitutional crisis unless the three branches of government can function and provide the checks and balances in the Constitution. Otherwise America’s divisive and seemingly intractable partisan politics will lead to a disastrous constitutional crisis, much like the one in 1860. If so, we only have ourselves to blame.
The Editorial Board of the Washington Post has observed that under a lawless Trump our system of checks and balances is being destroyed. “President Trump promised in 2016 that he would protect the Constitution’s “Article I, Article II, Article XII.” (There is no Article XII.) Instead, he has shown how fragile the constitutional order can be when a president does not respect the rule of law. He has not grown into the office; instead, he has learned how to more effectively abuse its powers. The damage of a second term might be irreparable. See https://www.washingtonpost.com/opinions/2020/09/18/trump-law-checks-balances/?arc404=true&itid=lk_inline_manual_30.
Frank Bruni has described Trump’s insistence on filling the vacant seat on the Supreme Court left by the death of Ruth Bader Ginsburg less than a month before the elections as “perverse” and a “special hell”. “It was almost inevitable that President Trump would get one Supreme Court appointment during this four-year term. ...But three? Seldom has a president’s impact been so inversely proportional to his warrant. Trump, with his nonexistent mandate, reaches extra far and wreaks extra damage. That’s what makes his reign so perverse. That’s the special hell of it. ...Some people — and some presidents — just get lucky. But no one gets luckier than Trump, and no one deserves it less. And this particular bit of luck, like his presidency, illuminates a serious and possibly unsustainable flaw in the American political system. We’re increasingly a country where the minority is not merely protected from the tyranny of the majority, as the nation’s founders intended. We’re a country where the minority rules, and under Trump, it rules tyrannically. ...On this front as on all others, Trump is propelled not by a genuinely felt vision for the country but by a genuinely insatiable ego. He’s a bully who likes to dominate — in any way available, to the fullest extent possible — and he’s running rampant, just for the adrenaline rush of it.” https://www.nytimes.com/2020/09/22/opinion/trump-supreme-court-appointment.html.
Erwin Chemerinsky has advocated that “one way for Democrats to make clear they will not tolerate Republicans trying to fill this seat in advance of the election would be for them to pledge that, if they take the White House and Senate in November, they will increase the size of the Supreme Court to 13 justices. The number of justices on the court is set by federal law, not the Constitution. Since its beginnings, it has ranged from having between five and 10 members. Since the 1860s, it has remained at nine. When President Franklin Roosevelt suggested expanding the Supreme Court in the 1930s to overcome court hostility to the New Deal, he was repudiated for trying to pack the court.” See https://www.latimes.com/opinion/story/2020-09-18/op-ed-democrats-have-a-secret-weapon-to-thwart-a-rapid-ginsburg-replacement-they-should-use-it.
The Guardian has noted the constitutional crisis in America surrounding filling Justice GInsburg’s vacant seat on the Supreme Court: “Democrats are not admitting defeat. But they are looking beyond election day, to the possibility of blocking the appointment – if Mr Biden wins and they take the Senate – or, for progressives in particular, to the nuclear option: enlarging or restructuring the supreme court (and, potentially, adding Puerto Rico and the District of Columbia as states, rebalancing the Senate). This would, surely, further exacerbate divisions in a desperately fractured nation. But for Republicans, it would be the sound of chickens coming home to roost. Though Mr McConnell and his cronies are not swayed by the kind of moral suasion Justice Ginsburg embraced, they should remember that what they do now will be neither forgiven nor forgotten.” See https://www.theguardian.com/commentisfree/2020/sep/22/the-guardian-view-on-the-us-supreme-court-rbg-persuasion-and-raw-power.
Megan McArdle has noted the escalating partisan charges and countercharges on filling the Supreme Court vacancy, the lack of any efforts for partisan reconciliation, and predicted that the tit-for-tat Supreme Court game is about to reach a catastrophic conclusion. “We now approach what is likely to be the bitterest election fight in living memory, and quite possibly the point where things get so bad they cannot get worse — where the game finally reaches its catastrophic conclusion with no winner, only losers. That’s the only way things can go unless someone decides to end this stupid game rather than initiating the next round. Unfortunately, everyone has convinced themselves it’s only the other side that is playing games, while their own, nobler partisans keep trying to bring a civics textbook to a gunfight. If you believe this, then it follows that your only hope of victory is to take off the gloves and (temporarily) abase yourself to the level of your opponent. ...As a nation, we have forgotten how to ask: “And then what?”
...Collectively, we’ll turn our highest court into an explicitly political super legislature that will lack the democratic legitimacy to so much as stay an execution, eviscerating the court’s power and function rather than ceding it to enemy hands. And when this packed, stacked and now thoroughly shellacked court starts issuing rulings that simply cannot be abided by the other party — well then, pray tell, what then?” https://www.washingtonpost.com/opinions/the-tit-for-tat-supreme-court-game-is-about-to-reach-a-catastrophic-conclusion/2020/09/22/77453cda-fd0b-11ea-b555-4d71a9254f4b_story.html?utm_campaign=wp_todays_headlines&utm_medium=email&utm_source=newsletter&wpisrc=nl_headlines.
Trump has asserted a rationale for him to deny the legitimacy of an election if he loses: "(G)et rid of the ballots and you'll have a very ... there won't be a transfer, frankly. There'll be a continuation," he added, saying "the ballots are out of control."
“Sen. Mitt Romney, a Utah Republican who has stood at odds with the President in the past, slammed Trump's comments later Wednesday. ‘Fundamental to democracy is the peaceful transition of power; without that, there is Belarus,’ Romney tweeted. ‘Any suggestion that a president might not respect this Constitutional guarantee is both unthinkable and unacceptable.’ Trump has previously said his rival Joe Biden would only prevail in November if the election is ‘rigged,’ and suggested earlier in the day it was likely the results of the election would be contested all the way to the Supreme Court.” See
“President Trump has refused to commit to a peaceful transition of power if he loses the election, asserting that if he doesn’t win, it will be because of fraudulent mail-in voting and not because more Americans voted against him. His latest comments came after he has spent months making unsubstantiated claims that voting by mail is corrupt and will lead to a “rigged” election.
‘Well, we’re going to have to see what happens. You know that I’ve been complaining very strongly about the ballots and the ballots are a disaster —’ Trump began when asked during a White House press briefing if he would ensure a peaceful transition. ...‘I understand that, but people are rioting; do you commit to making sure that there’s a peaceful transferral of power?” the reporter pressed, appearing to refer to incidents of violence that have broken out during some protests. ‘Get rid of the ballots, and you’ll have a very — we’ll have a very peaceful, there won’t be a transfer, frankly. There’ll be a continuation,” Trump said. ‘The ballots are out of control. You know it. And you know who knows it better than anybody else? The Democrats know it better than anybody else.’ ...I think this will end up in the Supreme Court. And I think it’s very important that we have nine justices,’ Trump said. ‘It’s better if you go before the election, because I think this, this scam that the Democrats are pulling — it’s a scam — the scam will be before the United States Supreme Court. And I think having a 4-4 situation is not a good situation.’” See https://www.washingtonpost.com/politics/trump-transfer-of-power/2020/09/23/be6954d0-fdf0-11ea-b555-4d71a9254f4b_story.html?utm_campaign=wp_todays_headlines&utm_medium=email&utm_source=newsletter&wpisrc=nl_headlines. On similar comments made by Trump during the 2016 campaign, see
https://www.washingtonpost.com/politics/2020/09/23/parsing-trumps-there-wont-be-transfer-power-comments/?utm_campaign=wp_post_most&utm_medium=email&utm_source=newsletter&wpisrc=nl_most; also https://www.washingtonpost.com/opinions/2020/09/24/trump-is-worst-threat-our-democracy-since-1930s/?utm_campaign=wp_opinions_pm&utm_medium=email&utm_source=newsletter&wpisrc=nl_popns.