Postpone the election? Voter intimidation? Amy Coney
Barrett is open to it.
Opinion by
Columnist
Oct. 13, 2020 at 6:35 p.m. CDT
Judge
Amy Coney Barrett wasn’t inclined to opine on anything — not on whether in
vitro fertilization is “tantamount to manslaughter,” not on whether she might
support re-criminalizing homosexuality and certainly not on whether she’d
invalidate Obamacare or Roe v. Wade.
But the
most chilling moment of her Supreme Court confirmation testimony Tuesday came
when she said she would “need to hear arguments” about whether President Trump
can postpone the election.
“President
Trump made claims of voter fraud and suggested he wanted to delay the upcoming
election,” Sen. Dianne Feinstein (Calif.), the ranking Democrat on the
Judiciary Committee, observed. “Does the Constitution give the president of the
United States the authority to unilaterally delay a general election under any
circumstances? Does federal law?”
This
should have been a gimme. There was only one correct answer: No.
But
this is not the answer Barrett gave. “Well, Senator, if that question ever came
before me, I would need to hear arguments from the litigants and read briefs
and consult with my law clerks and talk to my colleagues and go through the
opinion-writing process,” she answered. She said she didn’t want to give
“off-the-cuff answers” like a “pundit” but rather approach matters “with an
open mind.”
What?
Sure, nominees try to avoid the slippery slope of opining on potential cases,
but there is no room for argument here,
especially from a self-proclaimed “originalist” and “textualist.”
Article
II, Section 1 of the Constitution states: “The Congress
may determine the Time of chusing the Electors, and the Day on which they shall
give their Votes; which Day shall be the same throughout the United States.”
The
20th Amendment to the Constitution requires: “The terms of
the President and the Vice President shall end at noon on the 20th day of
January … and the terms of their successors shall then begin.”
Title
3, Section 1, Chapter 1 of the U.S. Code specifies: “The electors of President and Vice
President shall be appointed, in each State, on the Tuesday next after
the first Monday in November, in every fourth year succeeding every election of
a President and Vice President.”
By the
plain wording of the Constitution and the law, a president cannot unilaterally
postpone an election. But this nominee, sounding more Trumpist than textualist,
tells us it’s debatable.
Sen.
Amy Klobuchar (D-Minn.) returned to the subject of elections, asking Barrett:
“Under federal law, is it illegal to intimidate voters at the poll?”
Again,
an easy question with an obvious answer. The U.S. Code (Title 18, Chapter 29,
Section 594) calls for a fine,
imprisonment or both for “whoever intimidates, threatens, coerces, or attempts
to intimidate, threaten, or coerce, any other person for the purpose of interfering
with the right of such other person to vote.”
But
Barrett answered differently. “I can’t apply the law to a hypothetical set of
facts,” she said.
What
makes Barrett’s answers disturbing (and what probably makes her so wary about
answering) is there is nothing hypothetical about any of this. Trump did
propose postponing the election. He has made clear he will dispute the results
if he does not win.
He
refuses to commit to a peaceful transfer of power. He has repeatedly raised
unfounded doubts about the integrity of elections and falsely declared mail-in
balloting fraudulent. He has called for armed civilians to patrol the polls. He
has mobilized federal police against his critics.
After
Trump proposed on Twitter
“LIBERATE MICHIGAN” and “LIBERATE VIRGINIA, and save your great 2nd amendment.
It is under siege!,” members of a self-proclaimed militia hatched a plan to
kidnap the governor of Michigan, and considered the same for the
governor of Virginia, according to the FBI. Trump is using the Justice
Department to protect friends; he has used Anthony S. Fauci, the government’s
top infectious-disease expert, and Joint Chiefs Chairman Mark A. Milley in
his reelection ads without their consent; and he turned the White House into
the set for a political convention.
He got
the national intelligence director to declassify unverified
information about his political opponents; he circumvented Congress to
give election-season tax breaks and payouts by executive order; and he threatened to
invoke the Insurrection Act to “put down” election-night unrest.
Against
that backdrop, Barrett’s remarks on postponing elections and intimidating
voters could serve as an invitation to lawlessness from the woman who would, if
Republicans have their way, be on the Supreme Court by the time Trump tries to
discredit the election.
“This
president,” Sen. Patrick J. Leahy (D-Vt.) said, “expects his nominee to side
with him in an election dispute” and find that “Democrats have rigged the
election.” Leahy asked Barrett to recuse herself from such a dispute to protect
“confidence in both you and the court.”
The
nominee demurred.
Thanks
to the GOP’s abolition of the filibuster for Supreme Court nominations, Barrett
needn’t win over a single Democrat — and she didn’t try. Republican questioners
delighted in her past criticism of Chief Justice John G. Roberts Jr.’s ruling
upholding Obamacare.
It
wouldn’t be surprising if Barrett votes to strike down Obamacare and abortion
rights. But is it too much to ask that a Supreme Court nominee would defend the
Constitution and federal law from a president who disregards both? Apparently
so.
