“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?”
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.