Debating a Supreme Court on the brink

In the first presidential debate between President Trump and former Vice President Biden, we are likely to see sharp contrasts on issues and speaking styles. One contrast in particular should be front-and-center, since Fox News Channel’s Chris Wallace — this debate’s moderator — announced that the Supreme Court would be a main debate topic: Whether President Trump and Senate Republican Leader Mitch McConnell should spend time forcing the replacement of Justice Ruth Bader Ginsburg onto the court while the nation is reeling from more than 7 million infections and more than 200,00 deaths due to COVID-19, and even as people across the country are already casting their ballots for president.

Let’s step back for some perspective. Anyone who still believes America should follow rules and customs developed over centuries to make our government work for the benefit of everyone in America — not just one political party or another — may feel alienated today. On the heels of four years of corruption, cruelty, incompetence, and disregard for basic constitutional norms and values from this White House, some in our nation may feel mocked as naïve or ostracized as a holdover from a bygone era for even thinking that our government might one day be good for all our people.

Trump and McConnell’s decision to jam through a replacement for Justice Ginsburg against her dying wish — and their own precedent — to wait until the next president is inaugurated; to announce that decision before Ginsburg was laid to rest; to announce it before a nominee was even named to replace her; to promise a nominee who will pass Trump’s litmus tests against abortion rights and the Affordable Care Act, which the Trump administration is right now in the Supreme Court seeking to destroy, including its protection of people with pre-existing conditions (and COVID-19 could be one); to demand a quick confirmation so that the new justice can hand Trump victories in his attempts to litigate the results of this year’s election; even as Americans are already casting ballots for president and senator — all of these work to weaken whatever hope millions in America still have that our courts can be a place of impartial reason and justice, instead of simple power politics.

Trump and McConnell made their decision to fill this vacancy far more deeply into a presidential election year than when President Obama nominated Judge Merrick Garland back in 2016. Then, Republicans argued no nominee should be considered for a Supreme Court vacancy at all in the last year of a president’s term — the justification they used to block Garland from getting so much as a hearing, much less a vote. We know that hypocrisy is as old as politics itself, but the head-snapping 180-degree turnabout by Republicans marks a new low, corroding what little confidence people have in the legitimacy of its governing institutions.

And it is legitimacy, after all, that gives the Supreme Court its power.

To be clear, legitimacy for the court is the product of the confidence placed by the American people in the justices that they can act as trustworthy and independent arbiters in the cases before them, allowing people to voluntarily follow its orders. The flip side of this coin is that without legitimacy, the court can no longer fulfill its critical constitutional function. The fewer people who believe the court is impartial, the fewer who will follow its orders without being forced to — and that is a road none of us should want to travel. Nevertheless, the actions of Trump and McConnell corrode the legitimacy of the Supreme Court, confirming in the minds of many that, as they have suspected all along, the justices are just politicians whose jerseys — Team R or Team D — are hidden under their black robes.

Make no mistake, Trump and McConnell have placed a cloud of corruption and partiality over nominee Judge Amy Coney Barrett.

The two candidates should be required to confront this reality on the debate stage. The legitimacy of the Supreme Court, the fundamental rights of the people, and our ability to trust in basic fairness are at stake — and those stakes could not be higher.

Elizabeth Wydra, a former clerk at the U.S. Court of Appeals for the Ninth Circuit, is president of Constitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitution’s text and history. Follow her on Twitter @ElizabethWydra.