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The One and Only Question for Trump’s Nominee

Francis Wilkinson
·5-min read

(Bloomberg Opinion) -- It’s not certain that there will be anything like normal hearings on President Donald Trump’s next nominee to the U.S. Supreme Court, which Trump has said he will announce on Saturday. The Republican Party is Trump’s party, and it does not operate by democratic rules of transparency, accountability or deliberation. It seizes power when and how it can.

Senate Majority Leader Mitch McConnell has committed the Senate to a quick vote, which may preclude a thorough hearing. Trump himself has made it explicit that he wants an expedited appointment to the court so that a new Republican justice is seated in time for the November election. “You need nine justices,” Trump said this week. “You need that. With the unsolicited millions of ballots that they’re sending, it’s a scam. It’s a hoax.”

Voting, by mail or otherwise, is not a hoax. However, it seems Trump does not trust that all five conservative justices currently on the court will endorse the three-step legal coup that he has set in motion:

Lie about huge vote fraud. Use those lies as a rationale to invalidate legitimate votes in swing states, especially vote-by-mail ballots that are expected to be counted late and to skew heavily Democratic. Claim victory, relying on Republican state officials to invalidate Democratic ballots and trusting a Supreme Court majority appointed by Republicans to uphold the destruction of democratic legitimacy.

Trump’s course has been apparent for some time. He has spread lies about voter fraud almost constantly while his legal team challenges anything that makes voting easier in a pandemic, and a report in the Atlantic magazine makes it clear that he has willing accomplices among state Republicans. If and when he demands that the vote count be curtailed, they intend to reinforce his attack on democracy. Election law expert Richard Hasen says the U.S. faces a “five-alarm fire.”

It’s possible, of course, that Trump could still win a legitimate Electoral College majority and the presidency. But the president’s bogus warnings about fraud suggest that he doesn’t anticipate such an outcome. Neither do the polls. Given the potential for state and federal criminal charges against Trump in the event he loses, the personal stakes are especially high.

So if something akin to legitimate hearings are held on Trump’s court nominee, Democrats should abandon the usual quizzes on judicial temperament and the pointless, unenlightening parry and thrust over Roe v. Wade. In democratic times, there’s an almost comforting banality to such exchanges. They are unaffordable luxuries today. Even a focus on the fate of health-care policy may be too pedestrian for the moment. Health-care access is a tried and true message for winning votes, not for protecting votes targeted for destruction.

Instead, Democratic members of the Senate Judiciary Committee should lay out the coup that Trump and Republican officials have already telegraphed, culminating in a prospective Supreme Court ruling so brazen it would make Bush v. Gore look like judicial restraint. It’s unclear if Republicans can pull off such a crime. But Democrats should ask the nominee point blank whether she intends to help Trump and his party steal the election. It will be more than dramatic television: It will be a vital public education.

Democrats have a senator on the committee who is perfectly positioned for the job. It’s not Kamala Harris. While Harris has earned praise for her prosecutorial skill, she is now her party’s nominee for vice president. Her words are perceived through a filter of acute partisan self-interest.

The proper senator for the task is Amy Klobuchar, the Minnesotan who has made a brand of suburban moderation and Midwestern common sense. No one confuses her with a partisan firebrand, and the White House is, for now, no longer in her sights.

Klobuchar may well be the reason that Brett Kavanaugh is on the Supreme Court. Kavanaugh’s combative, self-pitying performance before the committee, which had just heard sworn testimony that he had assaulted a young woman when he was a heavy-drinking teenager, reached a crescendo when he lashed out at Klobuchar.

Klobuchar asked Kavanaugh, whose drinking (“I like beer”) was a focus of the inquiry, if he had ever been so drunk that he lost his memory.

“I don’t know,” he responded. “Have you?” It was a shockingly disrespectful and aggressive response — precisely opposite of what Kavanaugh needed to project toward a female senator.

Had Klobuchar gone for the jugular, she might have ended Kavanaugh’s career right then. She quietly demurred. Later, she politely accepted Kavanaugh’s belated apology when he returned from a break. It was an extraordinarily generous gesture.

In responding to the Republican plan to ram through a conservative jurist, Klobuchar told CBS Morning News that she would appeal to her Republican colleagues’ “sense of democracy, their sense of justice, and we will go from there.”

Klobuchar’s appeal appears poised to fail. The Republican Party is preparing not only to confirm an unprecedented last-minute appointment to the court but, more important, to send the U.S. spiraling into an abyss of illegitimacy.

If Democrats and the public can force a hearing in the Senate, however, Klobuchar will have a chance to make a second appeal — this time to the public. Klobuchar has the credibility, reputation, temperament and rhetorical skill to alert the nation to what Trump and the GOP have in store. (She could also supplant a faltering Senator Dianne Feinstein without giving rise to charges of sexism.)

Klobuchar cannot stop Trump; only the American people can. But she can sound a warning about what is almost certainly coming. By the time Trump tries to stop the counting of votes, and Republican officials move to invalidate them, everyone should recognize a crime that has been foretold.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Francis Wilkinson writes editorials on politics and U.S. domestic policy for Bloomberg Opinion. He was executive editor of the Week. He was previously a writer for Rolling Stone, a communications consultant and a political media strategist.

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