Donald Trump, both in his own behavior and in the policies of his Administration, has waged war on the rule of law. The tragedy of the coronavirus pandemic has absorbed the nation’s attention for most of 2020, so it’s easy to forget that Trump was impeached by the House of Representatives less than a year ago––and that he deserved to be. Trump’s withholding of congressionally appropriated assistance to Ukraine, in an attempt to extract from its government damaging information and propaganda about the Biden family, was precisely the kind of offense that the Framers intended impeachment to address. Trump’s defiance of Congress’s right to investigate his wrongdoing was another proper ground for his removal.
Trump’s Ukraine misadventure followed the conduct that the special counsel Robert S. Mueller III detailed in his report about the 2016 campaign and its aftermath. The Mueller report, now an even more distant memory, suggested that the President committed repeated acts of criminal obstruction of justice, which were at least as serious as those which led to Richard Nixon’s resignation. The failure of the Ukraine scandal or the Mueller investigation to bring about Trump’s removal speaks more to the craven state of the contemporary Republican Party, which has blindly supported its leader, than to the evident merits of the case against him.
Read our endorsement.
But Trump’s departure alone will not be nearly enough to restore the rule of law, and the changes necessary to achieve that must begin with the foundational right in a democracy: the right to vote. Since well before Trump’s Presidency, the Republican Party has been committed to limiting the franchise. The Supreme Court’s shameful decision in Shelby County v. Holder, in 2013, crippled the Voting Rights Act of 1965, and invited Republican-dominated states to undo the progress made since the passage of the nation’s most important civil-rights law. In transparent attempts to prevent the poor and people of color from going to the polls, Republicans have relied on spurious arguments about the possibility of voter fraud (a nearly nonexistent problem) to impose photo-identification requirements at polling places and to limit absentee and early voting. Trump, especially during the current campaign, has made the situation worse, in particular by attempting to sabotage the U.S. Postal Service, which will bear the burden of delivering ballots in the year of the coronavirus.
A Biden Administration could begin to address these issues right away. The House of Representatives has already passed a revision of the Voting Rights Act, which is now named for John Lewis, the late Georgia congressman, who devoted much of his life to winning and preserving the right to vote. The act would restore the process known as “preclearance,” in which jurisdictions with histories of discrimination must justify their changes in electoral practices. And it would empower the Attorney General to grant immediate relief when states attempt to limit the vote. The new law would need a Department of Justice committed to its enforcement; fortunately, Biden, who has a long history of supporting voting rights, could be expected to replace the lamentable William Barr with an Attorney General who is a strong advocate for democratic values.
A renewed Voting Rights Act, along with all other legislation in a Biden era, will, of course, have to pass in the Senate, too. It now seems possible that the Democrats will retake control of that chamber, and thus end the sinister reign of Mitch McConnell as Majority Leader. But majority control won’t suffice, owing to the ubiquity of the filibuster. Even in the best of circumstances, the Senate has a dubious connection to representative democracy, which is why Wyoming and California have the same number of senators. But the filibuster allows just forty-one senators, who may represent a great deal less than forty-one per cent of the population, to stymie legislation indefinitely. And although Democrats have made use of the filibuster in recent years, it’s clear that they, as the party of activist government, will always suffer more from this procedural roadblock. Sooner rather than later, a new majority should revise the Senate rules and abolish this relic once and for all.
Control of the judiciary has been an animating force in the Trump Administration, as the President and the Majority Leader have demonstrated with astounding cynicism. After Antonin Scalia died, in February, 2016, McConnell prevented a vote on Merrick Garland, President Obama’s nominee to replace Scalia on the Supreme Court, by inventing a rule that no Court confirmations should take place during a Presidential-election year. That seat went to Neil Gorsuch, and his nomination was followed by that of Brett Kavanaugh. Now, after the death of Ruth Bader Ginsburg, Trump and McConnell are violating the principle used to thwart Garland and attempting to install a new Justice, even though early voting in this Presidential election is already under way.
Democrats in the Senate may not be able to prevent the confirmation of a third Trump Justice, but if they win back the majority, and Biden is elected, they should take a hard line. Trump has filled the lower courts with conservative ideologues who will use their lifetime posts to limit the rights of women and the L.G.B.T.Q. community, and (as ever) to attack the voting rights of people of color. Biden should pay the same close attention to the judiciary, appointing judges who will undo some of the damage and, while he’s at it, initiate legislation to expand the federal judiciary, which has remained essentially the same size for decades.
Control of the courts would be the pivot on which much of Biden’s agenda would turn. Thanks to the Citizens United decision and related cases, anonymous donors were able to spend millions of dollars to help confirm Gorsuch and Kavanaugh. That was, in part, because conservatives wanted to push their reactionary social agenda, but the money was meant to purchase far more. With great but incomplete success, conservatives have used the courts to hamstring the administrative state. Many of Obama’s initiatives have been challenged in the courts, including those on health care, labor law, immigration, and climate change. The initiatives of a President Biden would be, too. So Biden should invest political capital in quickly filling the lower courts with progressive, distinguished (and young) women and men. As the great Chief Justice John Marshall said, more than two centuries ago, “It is emphatically the province and duty of the judicial department”—now called the judicial branch—“to say what the law is.” A new Administration should act with this still urgent insight in mind. ♦
