Election season’s final lap
The Senate in the balance, Biden in the dock, and Barrett in the court
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After months of one of the most unusual presidential campaigns in modern history, we’re less than one week away from Election Day. Here’s a grab-bag of stories to watch as the week unfolds.
While the top of the ticket is grabbing the most attention, GOP senators remain locked in a grueling battle to hang on to their majority—and to prevent a Democratic sweep of the White House and both chambers of Congress.
Some Republican senators seemed to brace for a potential wipeout: Sen. Ben Sasse, R-Neb., will likely keep his Senate seat, but he’s clearly worried about down-ballot disasters in swing states. Sasse slammed President Donald Trump’s leadership during a recent campaign call with constituents, and he warned of a “Republican bloodbath” in the Senate if Trump loses.
Sen. Ted Cruz, R-Texas, blamed Democrats for holding up a new coronavirus stimulus package, but he worried about a similar scenario: He told CNBC that if voters are angry and depressed on Election Day, the GOP could face “a bloodbath of Watergate proportions.”
Sen. Thom Tillis, R-N.C., avoided talk of bloodbaths in his swing state re-election bid, and he told reporters he thought Trump could win. But he also added a pragmatic note: “The best check on a Biden presidency is for Republicans to have a majority in the Senate.”
Biden in the dock
When it comes to a Biden presidency, Democratic nominee Joe Biden hasn’t answered questions about whether he would add more justices to the Supreme Court. The question gained urgency as Democrats objected to Republican plans to confirm a new justice before Election Day.
Republicans moved ahead: The Senate voted to confirm Amy Coney Barrett to the Supreme Court on Monday evening, and she was officially sworn in on Tuesday.
The ball is now in Biden’s court: With less than a week left before Election Day, will he say whether he intends to support packing the Supreme Court? In a town hall on Oct. 15, Biden said he’s “not a fan” of the idea, but he didn’t rule it out. A few days ago, he said he would convene a committee of scholars to study the courts if he’s elected, but he still didn’t answer queries about adding additional justices.
Biden’s running mate, Sen. Kamala Harris, D-Calif., dodged a similar question in a debate with Vice President Mike Pence, but during her primary run for the presidency she told The New York Times she was “absolutely open” to the discussion of expanding the court.
Rep. Alexandria Ocasio-Cortez, D-N.Y., made her own demands clear in a Monday night tweet to her own party: “Expand the court.” House Speaker Nancy Pelosi, D-Calif., didn’t dismiss the idea in an appearance on MSNBC: “Should we expand the court? Well, let’s take a look and see.”
Meanwhile, another question remains unanswered: Biden has avoided queries about whether he intends to support eliminating the Senate filibuster and pave the way for most legislation to pass with a simple majority in the Senate.
Biden also continues to face allegations regarding his involvement in the overseas business dealings of his son, Hunter Biden. The former vice president denies ever discussing overseas business with his son. Tony Bobulinksi, a former business associate of Hunter Biden, alleges that’s not true, and he says he met with both Bidens in May 2017.
Barrett in the court
Barrett’s new appointment means the conservative balance of the high court shifts to 6-3. But it also may mean more influence for one justice in particular: Clarence Thomas.
That’s because Chief Justice John Roberts sometimes votes with the more liberal side of the court in decisions that have come down 5-4. In those cases, Roberts has the authority to choose which justice writes the majority opinion, and he can assign the duty to himself.
But the new balance brings a new twist: If Roberts joins the liberal side of the court in some cases—and if Barrett joins the conservatives—the conservative side likely would prevail 5-4. With Roberts in the dissent, the authority to assign authorship of the majority opinion would fall to the most senior justice in the conservative majority.
That would be Clarence Thomas.
Wall Street Journal opinion editor James Taranto considers the implications: “Justice Thomas is something of an anti-Roberts. His lone concurrences and dissents are usually not incremental but adventurous, urging colleagues to break new legal ground or rethink old precedents.”
Taranto notes that in a dissent this summer, Thomas argued that “Roe v. Wade was wrongly decided and should be overturned—a position no other sitting justice has endorsed since Antonin Scalia died in 2016.”
With a new court balance, Taranto says Thomas may be in a position to write majority opinions and to “induce the court to a bolder conclusion.”
For now, Barrett joins the court just in time to face a request that she recuse herself from an election-related case. There wasn’t an immediate word on Barrett’s response, but she did make one election-related comment during a White House ceremony on Monday night:
“My fellow Americans, even though we judges don’t face elections, we still work for you. It is your Constitution that establishes the rule of law and the judicial independence that is so central to it.
“The oath that I have solemnly taken tonight means, at its core, that I will do my job without any fear or favor, and that I will do so independently of both the political branches and of my own preferences.”
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