“It has been 80 years since a Supreme Court vacancy was nominated and confirmed in an election year. There is a long tradition that you don’t do this in an election year.”
– Sen. Ted Cruz (R-TX), February 14, 2016, “Meet the Press”
“The court — we are one vote away from losing our fundamental constitutional liberties, and I believe that the president should next week nominate a successor to the court, and I think it is critical that the Senate takes up and confirms that successor before Election Day,” Cruz said. “This nomination is why Donald Trump was elected. This confirmation is why the voters voted for a Republican majority in the Senate.”
– Cruz, September 18, 2020, hours after the death of Supreme Court Justice Ruth Bader Ginsburg
If hypocrisy was a virtue, many politicians would be among the most honorable of citizens. Sadly, political environments seem to have no room for such people. Hypocrisy reigns, as U.S. Senate Republicans rammed through the nomination of Judge Amy Coney Barrett this week, in order to fill the seat left by the death Justice Ruth Bader Ginsburg last month. Ginsburg’s failing health and ultimate death had been the subject for years among Supreme Court watchers. Liberals and even moderates feared her death would come at such a pivotal moment in U.S. history as we’re in now.
Allegations of a double standard aside, my biggest concern with Barrett is her unwillingness to answer questions regarding one particular issue, the most sacred element of democracy: voting. I’ve always found it odd that conservatives will move mountains to protect gun rights, but unleash similar amounts of energy to thwart voting rights. It’s obvious this matter is critical because we are on the cusp of a presidential election. Yet, the right to cast a ballot has come under threat since Barack Obama fairly and legitimately won his first election in 2008. (Understand there’s never been any question of the validity of Obama’s elections.) States with predominantly Republican legislatures suddenly became concerned with voter fraud and began implementing measures to combat it. Similar reactions erupted after passage of the 1965 Voting Rights Act and ratification of the 26th Amendment to the U.S. Constitution in 1971.
My home state of Texas, for example, was among the first to tighten voter identification. College ids and utility bills were nearly eliminated as proof of one’s existence or residency, but they retain their positions as supplemental forms of identification. Other measures, such as fingerprints and retina scans were proposed – all in a futile attempt to combat the mystical voter fraud; much the same way Ted Cruz managed to fight off myriad communist sympathizers on the manicured grounds of Princeton University.
In the midst of the current COVID-19 pandemic, the idea of standing in crowded places to cast a ballot made many people shudder. Generally, senior citizens and the disabled were among the few granted the privilege of mail-in voting. But, as the novel coronavirus remains highly contagious, mail-in voting became more palatable. Then, as if on cue, President Donald Trump and other right-wing sycophants raised the ugly specter of voter fraud. And, of course, mail-in voting – just like the overall right granted by the 1st Amendment to the U.S. Constitution – was in jeopardy.
When voting rights advocates tried to compromise by pushing for drop-off ballot boxes, conservatives again balked. On October 1, Texas Governor Greg Abbott mandated that only one drop-off box would be acceptable per county. That works great for tiny Loving County (pop. 169), but not for massive Harris County (pop. 4.7 million). U.S. District Judge Robert Pitman overruled Abbott; denouncing the governor’s proclamation as “myopically” focused. But the governor persisted, and the 5th U.S. Circuit Court of Appeals agreed with him.
Earlier this week, however, Judge Barrett couldn’t seem to bring herself to declare the importance and value of voting rights. Minnesota Sen. Amy Klobuchar asked Barrett about the freedom of the formerly incarcerated to regain their voting rights. She highlighted one of Barrett’s 2019 dissent in Kanter v. Barr that voting should be granted only to “virtuous citizens.” In the Kanter case, the U.S. Court of Appeals for the 7th Circuit ruled it reasonable that the litigant, Rickey Kanter, lose his right to own firearms after a felony conviction for mail fraud. Barrett was the only member of the 3-judge panel to resist and brought up the “virtuous citizens” remark, which subsequently invoked discussions of what constitutes virtuous. As with any moral declaration, the concept of virtue can be purely subjective. Yet Barrett didn’t stop there. In her dissent, she went on to write that the application of virtue should limit the right of citizens to vote and serve on juries.
I can’t count the number of times I’ve heard conservative political figures announce their support for ex-convicts to regain their right to bear arms, if they’ve served their full sentences. None, however, have expressed similarly ardent advocacy for the same ex-convicts to earn back their right to vote. I suspect this is because they all realize the significance of the power of voting and the power it gives even to the poor and disenfranchised. Hence, measures in the past with poll taxes and “grandfather clauses”.
Barrett still wouldn’t clarify what she meant by “virtuous”. In response to Klobuchar, she said, “Okay. Well, senator, I want to be clear that that is not in the opinion designed to denigrate the right to vote, which is fundamental … The virtuous citizenry idea is a historical and jurisprudential one. It certainly does not mean that I think that anybody gets a measure of virtue and whether they’re good or not, and whether they’re allowed to vote. That’s not what I said.”
Klobuchar persisted. In citing Justice Ginsburg’s writing in the landmark voting rights case Shelby County v. Holder, she asked, “Do you agree with Justice Ginsburg’s conclusion that the Constitution clearly empowers Congress to protect the right to vote?”
Shelby County v. Holder was crucial in the contemporary assault on voting rights. It addressed Section 5 of the 1965 Voting Rights Act, which requires certain states and local governments to obtain federal preclearance before implementing any changes to their voting laws or practices and Section 4(b), which contains the coverage formula that determines which jurisdictions are subjected to preclearance based on their histories of discrimination in voting. The seminal 1965 act was not-so-subtly aimed at southern states. When the case arrived at the U.S. Supreme Court in 2013, where a 5-4 ruling declared Section 4(b) unconstitutional because it was based on data over 40 years old. The high court didn’t strike down Section 5. Previous research had showed that both sections had led to increases in minority voting since the 1960s. Contemporary voting advocates, however, claimed that recent efforts – especially after Obama’s 2008 victory and mainly in the South – made it easier for election officials to impose greater restrictions on voting.
Again, Barrett just couldn’t (more likely wouldn’t) bring herself to state her position clearly. “Well, Senator, that would be eliciting an opinion from me on whether the dissent or the majority was right in Shelby County,” she told Klobuchar, “and I can’t express a view on that, as I’ve said, because it would be inconsistent with the judicial role.”
Klobuchar then brought up alarming news that Atlas Aegis, a Tennessee-based company, was trying to recruit former members of the U.S. military to show up at various polling places while armed; all in a supposed effort to ensure the security of voting. The image of such activity has become plausible as even President Trump advocates for armed poll-watchers to prevent voter fraud. Whether these people should be armed with bazookas or cell phones hasn’t been made clear, but the threat is obvious.
“Judge Barrett,” asked Klobuchar, “under federal law, is it illegal to intimidate voters at the polls?”
“Sen. Klobuchar, I can’t characterize the facts in a hypothetical situation and I can’t apply the law to a hypothetical set of facts,” Barrett said.
Well, that’s a nice, safe response. And I have to concede it’s only proper in such a setting. A fair jurist can’t logically state a position without knowing the facts. As the late Justice Antonin Scalia, Barrett’s self-admitted idol, once declared, “I want to hear your argument.” But that should apply only to specific cases. There should be no doubt about the concept of voting.
Barrett was also evasive in answers to other questions, such as abortion – the perennially key issue among conservatives – and the Affordable Care Act. Trump had made it clear from the start of his presidential campaign that he wanted to overturn both the Supreme Court’s 1973 Roe v. Wade decision and the ACA. While he and social and religious conservatives offer no concessions for Roe, the president often mentioned a replacement for ACA, which has yet to materialize and – as far as I’m concerned – doesn’t exist. Roe will always remain a thorn in the fragile ribs of conservatives, but the idea of eliminating health care coverage for all citizens – particularly while we remain mired in this pandemic and flu season already underway – is infuriating. Not-so-ironically the high court is set to review the validity of the ACA next month. As with the upcoming election, Trump wants to ensure a conservative majority on the court before both events.
Trump has already stated – as he did in 2016 – that he will only accept the results of the election if he wins. Whatever fool is surprised, please raise your hand now, so we full-brain folks can laugh at you! Loudly. Yet it’s clear: Trump realizes this election could end up like 2000, when the Supreme Court ordered the state of Florida to stop its ballot recount and thereby hand the presidency to George W. Bush. That Bush’s younger brother, Jeb, was governor of Florida in 2000 wasn’t lost on most. The “good-old-boy” network was alive and well at the turn of the century!
And it thrives in the anti-First Amendment actions of Republican governors across the nation. I feel that Barrett is basically their puppet; their tool in resolutions to ensure a conservative majority in the Supreme Court. As with any justice, Barrett’s place on the court could impact generations of people. As a writer, I’m a strong free speech advocate, which equals the right to vote. They’re intertwined. And I feel that many conservatives view the 1st Amendment to the U.S. Constitution as available to only a handful – people like them. People who share their narrow view of the world and what is appropriate in order to function within it.
Thus, the U.S. Senate’s kangaroo confirmation hearings for Barrett are ominous.