Our Unconstitutional Constitution

It has to be said over and over and over again: Amy Coney Barrett is going to be confirmed as an associate justice of the U.S. Supreme Court.

The Constitution gives the president the power to nominate her, and it gives the Senate the power to approve her nomination. The president has nominated her and the Senate majority intends to appoint her. She is an eminently qualified jurist with sterling recommendations from everyone who’s ever had anything to do with her, and the full approval of the American Bar Association.  There is nothing Democrats can do to stop her appointment, and they know it.

Because they cannot stop it, they’re using the hearings as political theater.  Who can blame them? If they can’t stop the process, they might as well use it as a campaign ad. I would expect Republicans to do the same if the shoe were on the other foot.

Fine. What’s regrettable is not their strategy, but some of their tactics.

Their supporters don’t need much in the way of extra sauce here: the mere fact that Donald Trump is appointing a third justice in four years is all the rallying cry they need. Democrats can also remind their voters of the Republican hypocrisy in denying a hearing to President Obama’s nominee Merrick Garland in 2016 “because it was an election year,” even as those same Republicans insist on a hearing for Trump’s election-year nominee right now. (Obviously I wouldn’t expect Democrats to acknowledge their own hypocrisy in insisting back in 2016 that Merrick Garland get a Senate hearing even though it was an election year.) If they’re trying to win over moderates and undecideds, to the extent such elusive creatures exist, they can continue trying to paint Amy Coney Barrett as a wild-eyed fanatic hell-bent on over-turning Roe v. Wade and Obamacare and reducing American women to livestock. It’s dishonest, but for better or worse it’s well within the ordinary bounds of political rhetoric.

They’re doing all of those things and that’s to be expected.

But they’ve also been calling the entire process illegitimate and unconstitutional, within the Senate and out in the media. Those are not just lies, but harmful lies. Women and men in the highest elective offices in the land, who took an oath to support and defend the Constitution, are, along with Joe Biden, calling the very procedures spelled out in that document “illegitimate” and “unconstitutional.” They’re telling Americans that the Constitution is unconstitutional.

They should stop.

Here, again, is the relevant part of the U.S. Constitution (Art. II, sec. 2):

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The claim that anything to do with the nomination of Amy Coney Barrett is or has been in any way illegitimate or unconstitutional is so ridiculous that even leftist news personalities have had to push back on it, as Jake Tapper did this Sunday in the following segment with Biden’s communications director:

In a similar vein, Democrats have begun calling the ordinary replacement of a justice “court packing.” That’s also a lie, and it’s being used to muddy the concept of court packing.

The term “court packing” has had a very definite meaning for about a century and a half. It has referred to the addition of justices to the court, not the replacement of seats vacated by retirement or death.

There have been nine justices on the court for 151 years. Stymied by the court once too often, FDR did in fact scheme to “pack the court” with additional justices to get a Supreme Court more favorably inclined towards his way of thinking, but his advisors talked him out of it. It was, as one modern American politician put it, “a bonehead idea.”

That modern American politician was Joe Biden.

Most Americans are opposed to court packing in the traditional sense, but the far left is very much in favor of Democrats packing the court in the event of a Biden victory. This would take the form of adding as many progressive justices as necessary to ensure a progressive tilt to the court. It’s short-sighted and stupid, in that its main consequence would be that the next Republican president with a Republican senate would simply pack the court with enough Constitutional originalists to tilt the majority back in that direction. And so on. Until we end up with a Supreme Court that could fill a sports stadium–or, as Senator Mike Lee (R-UT) observed on Tuesday, a Supreme Court the size of the Galactic Senate in Star Wars.

Nevertheless, Democrat politicians had been hinting at a willingness to pack the court if Biden won until polling revealed the general consensus against it, at which point they found themselves in an awkward spot: their hardcore base wants them to pack the court, but if they promise to do so they’ll lose a lot of support from moderates. Thus Biden and Harris’s refusal to answer the question.

Thus also this new rhetorical offensive by the Democrats to redefine “packing the court” to mean “appointing a justice we don’t like.” That way they can sow confusion about the term and make Americans wonder whether President Trump is trying to do the very thing he’s been saying the Democrats have threatened to do. They can hope the inattentive American voter will wonder how bad “court packing” can actually be when it’s something both sides want to do.

These three lies–illegitimacy, unconstitutionality, and “court-packing”–are all the worse because they’re so unnecessary. As I’ve already outlined, the Democrats already have plenty of ways to use the hearing process to rally their base, and plenty of opportunities to win over moderates, without having to mislead Americans about the meaning of their Constitution and its processes. On Tuesday, for example, Senator Sheldon Whitehouse (D-RI) threw out all kinds of terrifying conspiracy theories and insinuations about dark money and corruption and influence peddling. You know, good old-fashioned political slime. That’s the ticket!

So why lie about and degrade the nature of America’s Constitutional system when you don’t need to?

It’s the political equivalent of flipping the game board over when you’re losing at Monopoly or Risk (or chess, or backgammon, or Ludo). It’s ruining the game for everyone just because you’re losing.


That’s literally what they’re saying with these lies. It’s a childish response, a tantrum. It’s also been the Democratic modus operandi since Donald Trump won the election in 2016: he was an illegitimate president whose administration shouldn’t be normalized; the Electoral College, eminent and respectable enough in 2008 and 2012, was suddenly an archaic institution that had to be dismantled; the Senate was an abomination because it gave the same number of seats to tiny little Rhode Island as it did to megastates like California, Texas, Florida, and New York; and now the Constitutional rules for appointing justices to the Supreme Court are illegitimate because the Senate minority can’t stop a president and a Senate majority from placing a justice on the court even though they really, really want to.

These aren’t policy positions or political arguments: they’re temper tantrums. The Democratic leadership and most of their supporters in the media have become a five-year-old child screaming in the middle of the supermarket that he wants Chocolate Sugar Bombs and wants them right now and he’s going to scream and kick and cry until he gets them.

It was heartening to see Jake Tapper call out Biden’s campaign for calling the Constitutional process now underway “unconstitutional.” It has been heartening to see actual journalists pressing Joe Biden and Kamala Harris for an answer on the (real) court packing question, even if those journalists have so far only been from local media in small markets. It is heartening to see mentions of Biden and Harris’s evasions, and the video of Tapper’s persistence, embedded in a Berlingske article (by Birgitte Borup), followed not long after by this paragraph:

Mens diskussionen om forfatning og højesteret muligvis lyder noget langhåret med danske ører, er den af stor vigtighed for amerikanerne. Højesterets funktion er løbende at fortolke, om der er overensstemmelse mellem lovgivning og forfatning, og ideologisk hældning kan betyde ganske meget i vurderingen af værdipolitiske spørgsmål.

It’s a start.