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OP-ED: Could Amy Barrett salvage Donald Trump’s flailing campaign?

  • Published at 04:32 pm October 5th, 2020
US President Donald Trump Reuters

Whether Trump wins or loses, her appointment to the Supreme Court, if approved, will shape America for years to come 

Under normal circumstances, it is expected of a US president to nominate to the Supreme Court a candidate of his choice when a vacancy arises. The candidate, who would normally meet the standard requirement of a jurist to occupy that august office, however,  has to also be the choice of the political party that the president belongs to, since the choice has to pass muster in the Senate. 

That partisan choice makes the nomination of a judge in the highest court of the country politically fraught, and the subject of great angst among political parties and the country at large.

The Supreme Court, with a total number of nine judges on the bench, is the third arm of government in the US. It acts as a referee also when the check and balance between the other arms, the executive (President) and the legislature (Congress), comes to a deadlock. The subject of contention is then thrown up to the Supreme Court for a decision. 

As an upholder of the constitution, the Court reviews the dispute and rules following the constitution. This dispute may not be just over a piece of legislation or presidential order -- this dispute may even concern the election of the president himself. 

The landmark decision of the court in this regard was in 2000 over the counting of votes in Florida which led to the election of President Bush over his democratic contender Alan Gore. 

In a five to four decision, the court decided not to ask Florida county -- where the votes were in dispute -- to be recounted, making Bush the winner by a thin margin. Such is the power of the Supreme Court. Hence, the angst.

A golden opportunity 

The opportunity to fill the Supreme Court with another candidate of their choice, a conservative jurist of known background, arose last month with the death of Ruth Bader Ginsburg, one of the four liberal judges in the Supreme Court. 

She had battled with cancer for the last several years, but the 87- year-old judge held on to her seat since 1993, with unfaltering loyalty to her liberal and progressive ideas. 

Her death, although not unexpected, gave a sudden fillip to Donald Trump and the Republican party to fill the bench with more conservative bias, such that the Supreme Court will rule in favour of conservative ideas and principles for years to come. 

Given that a Supreme Court justice is appointed for life, the death of Justice Ginsburg gave both the Republican party and Donald Trump a golden opportunity. 

For the Republican party, a chance to fulfill their dream of packing the Supreme Court with conservative judges. 

For Donald Trump, a chance to placate the Republicans, some of whom might have been displeased with his continuing lacklustre performance and over-the-top bravado, both of which have so far generated worldwide negativity about the president and lowered the prestige of the United States. 

Don’t forget Covid-19

Added to his travails is the pandemic of Covid-19 that has been ravaging the country with more than 210,000 deaths and counting. He has not only been unable to devise a strategy to contain the pandemic, he has fuelled more controversy about the containment of the virus with his mendacious claim of presenting the country with a vaccine before the November elections. The scientists view this achievement as next to impossible. 

So why is Donald Trump gloating over his nomination of a conservative jurist (Amy Coney Barrett) and the Republican-dominated Senate ensuring him a speedy confirmation process? Two different purposes, although they complement each other. 

Two birds with one stone

Trump’s intent is to kill two birds with one stone -- pleasing the Republicans and his conservative base, and to ensure that should a dispute over the next presidential election land in the Supreme Court, a bench loaded with conservative judges will favour him. 

This is a long shot but, at least, that is an additional motivation for Donald Trump. He is not only appealing to his rather dormant Republican base, a part of which may have lost their enthusiasm for his campaign, he is also trying to cheer up the Evangelical Christian community which is wedded to an anti-abortion agenda and other deeply religious subjects which they fear are in danger with a liberal Supreme Court. 

Trump's nominee, Amy Barrett, is a devout Catholic known for her opposition to abortion. 

In the mental calculation Donald Trump (if one gives him that credit) has made, his nominee will not only be a darling of the deeply conservative section of the Republican party, but also others as well because this nomination will mean a stranglehold of the judiciary by the conservatives for years to come. 

And Donald Trump will also reap benefits from a conservative bench should a decision on the next elections need to be made by the Supreme Court.

Presiding over the election

But how likely is the second outcome? Is it likely that there will be a dispute in the next presidential elections that may require intervention from the Supreme Court?

As is probably known to most people in the outside world, the US president is elected indirectly by an electoral college of 538 electoral votes. The electoral votes are allocated to the states on the total number of congressmen and senators each state has. 

The larger the state, the greater is its number of electoral votes. Only Washington DC, which does not have any representation in Congress, gets three electoral votes, the minimum allocated to any state. The winning candidate must get at least 270 of 538 electoral votes. 

This is how the electoral votes work -- the party that garners the majority of popular votes in a state wins the whole package of electoral votes allocated to that state. The three states which have the highest number of electoral votes are California (55), Texas (38), and Florida (29). 

With only a few exceptions, states govern almost every facet of the electoral process, including most aspects of voter eligibility, the location and hours of polling places, candidate access to the ballot, and the members of the state’s Electoral College. 

Understanding an electoral challenge

Therefore, any electoral challenge must begin, and often end, in state courts. A candidate who challenges the result in any particular state must file in a state court a complaint stating what aspect of the electoral process was not observed by the state. Congress has also provided that each state shall be the final arbiter of any election dispute.

The Supreme Court can intervene only if it can be shown or argued that the election process has violated the fundamental rights of an individual, such as the Equal Protection Clause under the 14th Amendment of the constitution, which mandates equal treatment of all citizens in the legal system. 

The only case in history under that provision was in 2000 where a dispute arose over the use of different counting standards in different counties of Florida, which led to a demand for recount in one Florida county. 

The Supreme Court, however, ruled against a recount, upholding the overall results in the state which went in favour of George W Bush.

Although it is too early to say that the upcoming elections will be a blowout for Biden or whether it will be a close call, the fact is that it is too far out a thought that this election will end up in the lap of the Supreme Court. 

It is far too early and far too presumptuous to think that way. Donald Trump may wish that it ends that way with his unproven allegations of possible fraud in postal balloting. That is why he may be thinking that a conservative-led Supreme Court will choose his case in the event it is asked to rule on elections.

But it most likely will not happen. What will happen, however, is that a Republican majority Senate could ensure that yet another conservative jurist will sit in the chair vacated by one of the most liberal, progressive, and high-minded justices the Supreme Court has ever seen. 

And she will occupy that seat for years to come.

Ziauddin Choudhury has worked in the higher civil service of Bangladesh early in his career, and later for the World Bank in the US.

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