Opinion

Tooth and Nail: The Passing of a Federal Judge is Not a Black Swan

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Posted: Sep 20, 2020 12:01 AM
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Tooth and Nail: The Passing of a Federal Judge is Not a Black Swan

Source: AP Photo/J. Scott Applewhite

Were there scratchmarks at the door of the Supreme Court in 2018? An individual or individuals pounded and clawed – yes clawed – at the doors of the chamber in an attempt to physically prevent the nomination of Justice Kavanaugh when it appeared the invented accusations of gang rape were not sufficient to prevent his nomination. That took place in an America where our political battles were manifest moreso in debates, versus assaults; character assassinations, less so actual ones like we saw attempted in Los Angeles last week.

As America prepares to fight tooth and nail – maybe literally – over SCOTUS seats and presidential elections, what we must immediately recognize and factor in are three things. First, the reason we fight over those results and less so over Senate and Congressional results is because the suzerainty of the black-robed nine and the kingly prerogatives of the presidency have subsumed most meaningful legislative authority. Secondly, the federal government has grown so grotesquely powerful that government actions matter in a way they should not. And finally, instead of abiding the consensus building required by our legislature, particularly the temperance-maker that is the Senate, the U.S. has embraced a rawer form of majoritarian government wherein presidents largely act to resolve major national issues in the absence of the legislature.

So we’ll have this fight over the Supreme Court seat vacated by Justice Ginsburg, and in addition to street violence what we’ll likely see is some element of a mass movement in the capital, likely not restrained to the local class of full-time bureaucrats/part-time protesters in DC. Scenarios such as the confrontation of Jeff Flake in the elevator, but more menacing, will occur and protection for swing state senators should become a priority. Immediate protection for the judicial nominee and their family members will also be crucial; ideally we can prevent a scene where they have to flee their residence.

We enter this period with Democratic governors and mayors having used their considerable power to create a set of conditions in which:

-- Economic self-sufficiency and recovery are disallowed.

-- Public squares are transformed into government-sponsored single-party protest spaces.

-- General law and order measures are often suspended.

It is clear these conditions are intended to remain in place until at least November 3rd and are likely to persist beyond that date in the event of a Trump victory. What they amount to is essentially a top down, state-led General Strike.

The passing of Justice Ginsburg is consequential, make no mistake, and it’s especially relevant because of the role we anticipate the Supreme Court may be required to play in deciding the 2020 election. That role has now been cast into further doubt about whether the results will be accepted by the American people. But the death of an aged Justice is not a black swan, nor is it a guarantor of instability. This moment, and the chance we tumble into further unrest, is not a cause of our divide, it is a reflection of it. Either our union can bear this moment, or it cannot. We need not create heroes and villains around it or maintain pretense about shows of unity as we scream at each other behind masks in our public squares.

The ongoing General Strike will move onto its next phase now due to the passing of Justice Ginsburg, and we’ll likely see some degree of a shutdown of DC that could very well inhibit the ability of the branches of government to function. We’ll blame the unfortunate timing and lament what 2020 has brought us and devise our own villains, but the reality is there were any number of moments that could have plunged a nation this divided into further crisis.  

What is becoming clearer now, what is coming into view post-election is that the options are now indeed about two different visions for our federal union. The Left is rushing towards the will and the rhetoric behind reforming our constitutional democracy. What democracy reform will accomplish is all the things that the Democrats could not via our existing political processes, and that’s why they must change them. Instead of making an argument that convinces the parts of the country they’ve abandoned, they’ve embraced a post-constitutional view of America and pledged their allegiance to it.