A Few Questions For Trump's Supreme Court Nominee
Credit: Screengrab
September 24, 2020

Barton Gellman's Atlantic article about the inevitability of a Trump effort to steal the election in the event of Joe Biden victory is frightening, in part because of details like this:

We are accustomed to choosing electors by popular vote, but nothing in the Constitution says it has to be that way. Article II provides that each state shall appoint electors “in such Manner as the Legislature thereof may direct.” Since the late 19th century, every state has ceded the decision to its voters. Even so, the Supreme Court affirmed in Bush v. Gore that a state “can take back the power to appoint electors.” How and when a state might do so has not been tested for well over a century.

Trump may test this. According to sources in the Republican Party at the state and national levels, the Trump campaign is discussing contingency plans to bypass election results and appoint loyal electors in battleground states where Republicans hold the legislative majority. With a justification based on claims of rampant fraud, Trump would ask state legislators to set aside the popular vote and exercise their power to choose a slate of electors directly.

We know that Trump intends to challenge mail ballots, which are expected to be disproportionately Democratic. So when the Senate Judiciary Committee holds hearings on the president's Supreme Court nominee -- a nominee Mitch McConnell hopes to seat before the election, so she can vote in the GOP's favor on election-related issues -- Democratic senators, in addition to asking her about healthcare and abortion and the usual issues that come up in such hearings, should ask her a few questions about democracy in America. Question such as:

Do you believe that a mail ballot cast in a manner consistent with state and federal law is a legitimate ballot?

Do you agree with the president of the United States that an election in which there are a large number of mail ballots is inevitably fraudulent?

Do you agree with the president of the United States that sending mail ballots to all voters in a manner consistent with state and federal law and with proper safeguards in place inevitably leads to fraud?

Do you agree with the president of the United States that there is a time limit after which ballots cast in a manner consistent with state and federal law should not be counted?

Do you believe that the president of the United States has the right to impound ballots cast in a manner consistent with state and federal law, and if so, under what circumstances?

And so on. This is not an exhaustive list.

It won't really matter -- when election issues come before the Court, Trump's appointee, if she has been seated by then, will vote however she likes, which in all likelihood will mean however the Republican Party wants her to vote. But it would be useful to put her on the record, on national television, acknowledging the legitimacy of the election we're about to conduct. And if she hesitates, Democrats should make that a national scandal.

Because remember who intends to vote by mail this year: older Americans in particular, many of them white suburbanites, who fear the health consequences of showing up at the polls. Democrats need to start saying now that the president's position is that Grandma's vote is illegitimate by definition. His Supreme Court nominee, who might not be expecting such questions, needs to be asked if she agrees.

Posted with permission from No More Mr. Nice Blog

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