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Barrett Confirmed, Post-Election Chaos Will Ensue

Photograph Source: Office of Senator Mitch McConnell – Public Domain

Yesterday Mitch McConnell’s Republican Senate confirmed its third ultra conservative Supreme Court nominee, Amy Barrett, as Supreme Court Justice. Coming in the midst of America’s current dual crisis—economic and Covid health—both now worsening, the Barrett appointment ensures the emergence of historic political instability in the USA. The dual crisis is about to become a triple crisis.

As US unemployment claims rise, rent evictions accelerate, food lines grow, the prospect of a fiscal stimulus bill in Congress fades, and as a third Covid 19 wave creates record level infections & hospitalizations, each deterioration has begun reinforcing the other.

Potentially exacerbating all the above, political instability and conflict of historic dimensions is around the corner. And the Barrett confirmation today, October 26, 2020 will put the US Supreme Court at the center of this dynamic.

The Consequences of the Barrett Confirmation

Democrats correctly complain Barrett’s confirmation will mean the end of women’s right to choose, a destruction of what’s left of the Affordable Care Act, the ending of many gay rights, a further US retreat from climate change, more deregulation of business, and a long list of other social programs of recent decades. They are right on all that. But even all that may not prove the worst of it.

Perhaps the most serious, and most immediate, consequence of the Barrett appointment to the US Supreme Court (SCOTUS) will be that Court’s interference once again in a presidential election—as in the 2000 national election when the Court played the central key role in stopping counting of votes and thus ‘selecting’ George W. Bush as president.

The Barrett appointment to the Court means Trump will have his 6-3 majority on the court just in time for the election and the counting of ballots. Even if chief Justice Roberts becomes an occasional swing vote, Barrett’s appointment will still ensure a 5-4 vote in favor of Trump.

The historic question thus arises: will Barrett, along with the other two Trump SCOTUS appointees Kavanaugh and Gorsuch, vote to stop the counting of mail in ballots in swing states and thus give Trump a second term? Would they dare? In particular would Barrett, being just confirmed to the Court?

More specifically, will the 6-3 SCOTUS Trump majority perform again its role of usurper of Democracy in America and intervene in Trump’s favor—as it did In 2000 when it ordered a halt to a vote re-count in Florida by declaring it “prejudiced George Bush’s’ campaign”? Is this possible again? You bet it is.

Guess who two of Bush’s main defense lawyers were in 2000 who demanded and argued to the Court at that time that it halt the vote re-count in Florida in favor of Bush? Both Barrett and Kavanaugh!

The Pusillanimity of Democrat Leadership

Democrats have been gnashing their political teeth, pounding their desks in the Senate, boycotting committee voting on the nomination, and making empty threats about stacking SCOTUS after the election. But recent history shows the Democrats themselves are complicit, and therefore responsible in part, for Barrett’s appointment, as well as for the appointments of her two radical right predecessors, Gorsuch and Kavanaugh.

It was the Democrats who capitulated when their nominee to SCOTUS, Garland, was nominated by Obama in early 2016. Garland’s nomination was stopped dead when the Senate’s leader, McConnell, refused to even have hearings on Garland—let alone take his nomination to a vote. McConnell used a phony Senate rule that there must be no nominations in a year of a presidential election, to halt the Garland nomination. And what did the Democrats do? Nada! They thought they would win in 2016 and push through Garland then. Bad strategy. Hillary and the Democrat party corporate moneybags who ensured Hillary was the party’s candidate in 2016 scuttled that. The Democrats capitulated to McConnell and did nothing.

That wasn’t the first time either. Remember the do-nothing Clarence Thomas’s nomination to the Court? No fewer than 11 Democrats in the Senate voted for him too? Now in 2020 they’re being ‘sandbagged’ once again by McConnell, who arbitrarily changed Senate rules a few weeks ago to get Barrett approved in a mere week before the national election! Democrats couldn’t get a hearing for Garland 11 months before an election; Barrett gets approved less than 11 days before the election! Democrats didn’t fight him in early 2016. They gave tepid resistance to the Gorsuch nomination by Trump. He flew through the confirmation hearing with little Democrat resistance. Kavanaugh was a wake up call for Democrats. They fought but, as usual, with an ineffective strategy.

Democrats’ failure to effectively resist McConnell is not new. Senate leader McConnell has played hard ball with the Democrats for years, striking them out repeatedly. Their batting average is pathetic. McConnell arbitarily broke Senate rules whenever it suited him, created new ones on the fly, and has generally ran roughshod over the Democrats at will. Meanwhile, Democrats keep crying ‘foul’ with each rule change, demanding McConnell play by the (old) rules and stop throwing them curve balls they can’t hit. So McConnell just threw them a fast ball past them in the Barrett case they couldn’t even swing at. Now they can’t even step up to the plate.

It all began with Obama back in 2009. He continually tried to establish a ‘bipartisan’ consensus with the Republicans to pass legislation for economic recovery. Obama listened to their demands to reduce his stimulus. But when he did not one Republican voted for it.

But they did vote when they convinced Obama in August 2011 to cut social spending programs by $1.5 trillion—i.e. more than Obama’s 2009 stimulus bill of $787 billion. Obama kept pursuing his futile ‘bipartisanship’. But he was tricked into cutting $1.5 trillion in education and other social programs, on the Republican promise that Defense spending would be cut as well by $500 billion. Republicans later found a way around that and Pentagon spending cuts were eventually restored. Outfoxed again, Obama fell in line in 2013 in the name of ‘bipartisanship’, when he and Democrats supported the Republican demand to extend George W. Bush’s 2001-03 massive $3.4 trillion tax cuts for business and investors for another decade. That added ten years of business tax cuts cost taxpayers another $5 trillion! Obama ended up actually cutting business-investor taxes by $trillions more than George W. Bush!

Time and again Obama extended his hand to the Republican dog which repeatedly bit him. Obama kept extending it nonetheless; and McConnell kept biting. That’s the history of legislation in Congress over Obama’s entire term, 2008-2016. And it explains a lot why millions of voters abandoned the Democrats in 2016—although Hillary’s ineffective campaign helped a lot.

With Trump’s election, Republicans shifted strategy from just thwarting Democrat policies to plans to destroy the Democrats politically for a generation. The Obama era bipartisanship strategy continued for a while into the Trump era. Trump was permitted to keep raising US defense spending by hundreds of billions of dollars every year, in exchange for his agreement not to cut social program spending. He gained; they kept what they had. Meanwhile, the US budget deficit reached $1 trillion a year, during what was vaunted to be a robust economy. Lasts year, 2019, the Dems woke up to the failure of bipartisanship with Trump and his transformed Trump-worshipping Republican party out to destroy them, but too late.

Now the Barrett confirmation will enable Trump and McConnell to bite off at least a couple more fingers of the Democrat hand: womens’ right to choose and the Affordable Care Act. But not just Obamacare or women’s right to choose are about to be severed. Soon Barrett will be the decider on the Supreme Court again—as in 2000—determining the outcome of the upcoming presidential election. Trump and McConnell may slice off a thumb.

With the Barrett confirmation, the US Supreme Court—with no right to select the president— may nevertheless do so again. An institution not even mentioned in the US Constitution, with Barrett providing Trump a secure 6-3 (or at minimum 5-4) majority the Supreme Court may once again usurp the sovereignty of the American people. Here’s how it may occur:

Creating One, Two, Three….Many Floridas!

In just a few short weeks, it will become apparent the USA in 2020 has entered a déjà vu contested election as in 2000. ‘Contested’ is an unfortunate term. Every election is contested. What the media really means by choosing such a safe, neutral term like ‘contested’, is that the election may be stolen… once again. And this time it may usher in a deeper coup d’etat, not just a personality change at the top, as Trump radically attacks his opponents and the last vestiges of Democracy in America upon consolidating his victory coup.

The November 3, 2020 election may be Florida 2000 all over again! Only this time, unlike 2000 when vote re-counting was halted in three counties in Florida to give George W. Bush the election, it will be two, three, many Floridas. And it won’t be vote recounting. It will be counting of initial mail-in ballot votes.

All indications are Trump clearly plans to challenge and halt the mail in ballot vote counting in swing states where the direct in person vote tally will be close—i.e. Pennsylvania, Michigan, Wisconsin, Iowa, Arizona, and maybe even Georgia or Florida. He already has more than 250 of his lawyers stationed in the swing states to file injunctions to stop the mail in ballot counts. More will be coming, poised in the wings to swoop down into the swing states if needed. They’ll demand and get preliminary injunctions to halt the mail in vote counting. Hundreds of McConnell judge appointees in the swing states in recent years will move quickly to approve injunctions and move them along quickly; ditto for McConnell Appeals Court appointees who’ll cooperate and hand off the appeals to the Supreme Court. The matter will quickly rise to the new Trump SCOTUS with 6-3 majority with Barrett, Kavanaugh, and Gorsuch recent appointees to the Court. They’ll pick the most favorable to Trump case to decide on, creating a de facto precedent that can be used to halt mail in ballot counting in other swing states.

The disruption and delays in vote counting will give Trump time to declare he has won the key swing states based on direct in person voting. He’ll likely declare himself the winner late on November 3 or certainly early on November 4 based on in person voting on November 3. Mail in ballot counting will be further delayed by legal maneuvers as long as possible. Trump will publicly hammer the message he won via direct votes and mail in votes are suspect, even fraudulent, and shouldn’t be ever counted but impounded.

Democrats will again gnash their teeth, jump up and down, and declare ‘foul’. Trump’s not playing by the rules. (Of course, he’s rewriting the rules in his favor, dummies, as he has always done).

Following Trump’s November 3 or 4 declaration of himself as winner, people will take to the streets to protest and demand resumption of the mail ballot vote counting. Trump will likely call on his supporters to hit the streets as well.

Demonstrators and counter-demonstrators will clash, sometimes violently. It may well make the Antifa vs. Proud boys conflicts of recent months look like a high school play dress rehearsal.

But those clashes and growing violence will benefit Trump. His lawyers can then argue that the social and political disruptions will only worsen, unless SCOTUS puts an end to it by permanently halting the mail ballot vote count. SCOTUS will comply, as it did in 2000. Or perhaps punt the ball and declare Congress should resolve the issue—but immediately to quell the social unrest and not after the new Congress takes office. That means with the existing Congress, dominated by the Republican Senate. Intensifying social disruptions in November-December will help to push the Court to decide in his favor, whichever of the two possible outcomes. He’ll therefore incite his followers incessantly through November-December.

It’s not coincidental that Wall St. and business interests are now buying insurance and hedging their investments in expectation of a scenario not unlike that just described. Nor coincidental that police forces and local governments are quietly preparing for mass confrontations in November, even as the mainstream media is purposely refusing to report on those preparations and scenarios.

Feeble Democrat Party Counter Strategies

Biden and Democrats are hoping that by generating a mass voter turnout they can avoid the close election results on November 3 in the swing states that, should that occur, would set in motion Trump’s plans and a SCOTUS repeat of Florida 2000 now in multiple swing states.

But a record voter turnout may occur in both sides—for Trump and for Biden—in the same swing states, with neither overwhelming the other and thus resulting in a close election in the swing states with record turnout for both sides! Turnout in such a case will be irrelevant. The election results will still be close, allowing Trump to still declare himself victor early.

The fact that far more Republicans will vote directly on November 3 than will Democrats (and conversely more Democrats vote via mail than Republicans) enables Trump to declare early victory and try to stop the mail in vote count. CNN polls show nationally that 55% Republicans will vote in person November 3, and only 22% Democrats. The percentages are reversed for the mail in voting. The swing state spreads will likely be even greater than the national CNN poll percentages.

Democrats and their media (CNN, MSNBC, etc.) keep talking today about national polls showing Biden with 8-10% lead over Trump in the popular vote nationwide. National polls are totally irrelevant. Only state wide polls and winning enough small states to accumulate a required 270 electoral votes to take the president. And the swing state polls show Trump and Biden virtually tied. Trump’s halting of mail in ballot counting could tip more swing states in his favor.

This election is not about maximizing voter turnout. It’s about not fully counting voter turn out in the form of mail in ballots in the swing states!

The US Supreme Court As Bulwark Against Democracy

America is a truncated Democracy. It does not have a direct democracy form of presidential election. There is no one person one vote. There never has been.

The USA has the electoral college, created in 1789, that was designed to check the popular uprisings of the 1780s following the end of the Revolutionary War in 1783. Read the minutes of the US Constitutional Convention. The electoral college was a concession to those who feared the direct action and voting by the general population. Following the revolutionary war’s end in 1783, Yeoman farmers rose up everywhere protesting the economic depression of 1784-87.

They occupied and in some cases even seized control of their state legislatures in protest to the unpaid debts owed them by their governments and rising taxation.

The US Constitution of 1789 was created in response to their protests, designed to centralize power in the hands of northern Merchants and southern Plantation owners in order to check the popular uprisings. No women or slaves could vote was one outcome of that Constitution. Another was no direct election of Senators. Another was the electoral college, designed to allow state politicians and their appointed electors to determine the presidency. The right of women to vote, freeing of slaves and ensuring their right to vote, and Americans’ right to directly elect Senators were all achieved by means of mass popular movements that amended the original un-democratic constitution. But the electoral college still remains unamended. Neither party wants to amend it. They fear the uncontrolled will of the people still.

Here’s another fact that most Americans don’t know about their own Constitution: no where in it does it call for or authorize a US Supreme Court! Just that the Congress after the ratification of the Constitution by the States would legislate some kind of judiciary. The Congress created the court by means of legislation after the Constitution. So SCOTUS is subordinate to the authority of Congress, to whom the people in turn delegate their ultimate sovereignty periodically by means of elections. And take it back in elections.

So Congress can change anything it wants about the Supreme Court. It can add or delete justices. It can limit their terms in office, no longer for lifetime. It can make the justices serve by means of elections. It can even abolish SCOTUS altogether and replace it with something else.

The Supreme Court is thus not a co-equal to the Congress in the Constitution. It is not a co-equal institution. SCOTUS was purposely omitted by the framers of the Constitution because they didn’t want an institution of judges who were not directly elected by the people and who served for a lifetime to have any power to negate the sovereignty of the people or its elected Congress. That’s what the founders argued in the minutes of the Constitutional Convention of 1787!

Even less so was the Supreme Court given the authority to rule a law passed by Congress was unconstitutional. The legislation passed by Congress creating a court system did not give the Supreme Court authority to negate laws. That power is called ‘judicial review’, i.e. a power the Supreme Court usurped for itself in 1803 when it simply assumed the power of judicial review for itself. In short, the power of the Supreme Court to declare a law unconstitutional is not provided by the US Constitution nor passed by any law of Congress! It is therefore unconstitutional.

Even more so, neither the Constitution, nor Congress, nor any other institution ever gave the Supreme Court the authority to intervene in an election for president and decide on suspending a vote count, or any way interrupt a vote count, in order to favor one candidate for president over the other. That is, not until 2000 in Florida. And now again soon most likely in 2020!

Those who believe SCOTUS does have the right to intervene in elections, or that the Supreme Court can rule a law unconstitutional, or even that it is a co-equal branch of government simply don’t know their own US Constitution. Or how the Supreme Court usurped and declared its powers in 1803.

The usurpation was declared in 1803 by then Supreme Court chief justice, John Marshall. Who was he? He was a former Secretary of State for John Adams, president 1797-1800, who lost the election of 1800 and quickly appointed Marshall, his Secretary of State, as Chief Justice, in order to try to check the incoming new president, Thomas Jefferson, from reforming Adams’ corrupt business dominated government. Adams also tried to stack the lower courts before Jefferson took office. Sound familiar?

The purpose of all this explanation of the origins of the Supreme Court is not to provide an academic history lesson. It’s to point out that the US Supreme Court is not an institution of American Democracy. It’s an institution created by business interests more than two hundred years ago, the primary purpose of which is to check and prevent the exercise of direct democracy and direct voting rights of the American people. It’s been doing just that for two centuries!

In recent years the Supreme Court has become even more active in thwarting Democracy in America.

In 2013 SCOTUS struck down the even weak voting rights act of 1965. It passed the infamous Citizens United decision in 2010 that gave businesses and wealthy investors virtually unlimited right to spend money for their candidates in elections, presidential and all other! It has repeatedly allowed and endorsed various ‘red’ states voter repression efforts in recent years, including allowing conservative and radical right state legislaturess and governments to throw out hundreds of thousands of registered voters before elections. It ‘selected’ George W. Bush as president in 2000. And it’s about to do the same—given the Barrett approval to join the Supreme Court today—for Trump in 2020.

America’s Rolling Coup D’Etat

Readers should remember all this when they watch the news tomorrow, as Barrett takes her seat on the Supreme Court before next week’s November 3 election—i.e. just in time perhaps to do the ‘selecting’ of another president contrary to the popular vote and will of the majority of the American people!

There is a rolling coup d’etat’ in progress in America today led by Trump and the radical economic and political interests supporting him.

And the Supreme Court of the USA, now firmly in his camp with the Barrett appointment, may well prove to be one of his essential tools in pulling off that coup d’etat.

A good part of the American people will no doubt resist, setting in motion street protests and demonstrations, counter-demonstrations with associated violence, and a period of great political instability in America in coming months perhaps not seen since the 1850s. That instability will exacerbate the growing concurrent economic and Covid 19 health crises, already mutually exacerbating each other. The dual economic-health crisis may thus soon become a ‘Triple’ crisis: economic, health, and political.

Jack Rasmus is author of  ’The Scourge of Neoliberalism: US Economic Policy from Reagan to Trump, Clarity Press, January 2020. He blogs at jackrasmus.com and hosts the weekly radio show, Alternative Visions on the Progressive Radio Network on Fridays at 2pm est. His twitter handle is @drjackrasmus.

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