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Unsanitized: Election Edition, for Oct. 27, 2020

Barrett Confirmation Reinforces That McConnell Is Looking Past This
Election

Or maybe he's looking to how a 6-3 Court can steal it.

 

Supreme Court Justice Amy Coney Barrett is sworn in on Monday night.
(Patrick Semansky /AP Photo)

**First Ballot**

**You don't need me to tell you that Amy Coney Barrett**was confirmed
last night as an associate justice of the Supreme Court, or that she
promptly celebrated by joining the president at a political event at the
White House
, one that
was quickly made into a

**political commercial**
,
featuring roughly the same number of people that attended her
"super-spreader" nomination announcement. You're all well-read people
and you probably know that already.

What you do need to hear from me is that I got this wrong. The night
that Ruth Bader Ginsburg died, Harold Meyerson and I wrote a story

explaining why Mitch McConnell would wait until after the election to
confirm a replacement. As today is not after the election, I can
confidently say we were incorrect! (We did at least predict that Barrett
would be the nominee.)

Our instinct was that McConnell would leave the seat open to serve a
couple goals: preserve the electoral fortunes of his most vulnerable
Senators running in swing states, and seemingly leave up to the voters
the trajectory of the Court to juice conservative turnout, only to
finish the job in the lame duck period, where he would have both the
votes and no accountability for his actions.

The miscalculation, which I recognized just a few weeks later in early
October
,
was that Mitch McConnell already believes this election is over. He
doesn't care much about protecting Cory Gardner in Colorado or Martha
McSally in Arizona because he can't see them possibly winning. Susan
Collins got a free pass and was the only Republican no vote last night,
but she'll be tarred with allowing the Court to move into a position
to repeal

**Roe v. Wade**on her watch. McConnell also likely believes that Collins
is done, and felt no strong pull to save her, either.

His priority was to install Barrett on the Court, and set his legacy for
transforming the judiciary. This has been McConnell's goal ever sense
he took over the Senate as Majority Leader in 2015. He's filled every
single vacancy in the circuit courts

(though one judge on the 1st Circuit just died Monday) and most in the
district courts, in addition to the three Supreme Court confirmations in
the past four years. Because he has no guile, McConnell admitted that he
cared more about the courts than the election

**on the Senate floor**: "A lot of what we've done over the last four
years will be undone, sooner or later, by the next election," he said on
Sunday
.
"But they won't be able to do much about this for a long time to
come."

That's only true insofar as Democrats don't resort to packing the
court, which isn't a bad bluff for Republicans to call. For his part,
Minority Leader Chuck Schumer said last night
, "You
will regret this, and you may regret it a lot sooner than you think."
That doesn't have to just mean court packing; Democrats actually have
other options to weaken the power of the courts, but I don't want to
tip my hand too much. All will be revealed soon.

We Depend on Your Donations

As for those wanting to condemn Schumer for not fighting hard enough to
block the confirmation, once McConnell got his full roster of
Republicans back in the Senate, there wasn't a whole lot to be done.
There were options when three GOP Senators contracted COVID and it
looked like they wouldn't be available

for floor activities. But that quickly subsided. If anything, you can
blame Nancy Pelosi for not sending over more than one privileged piece
of legislation that Senate Democrats had the ability to bring up to
waste time. A steady stream of War Powers and Congressional Review Act
resolutions and even impeachment articles could have kept the Senate
floor busy, though McConnell had options to parry that and the votes to
do so.

The important thing McConnell said in that Sunday statement is that his
work will be undone

**by the next election**. The next election is in a week. He knows.

That doesn't mean that Republicans won't try to cheat to prevent
that from happening, and a Supreme Court with Barrett on it is essential
to that strategy. Yesterday, without her input, the Court upheld
Wisconsin's voting laws

5-3, along party lines, invalidating any mail-in ballot that doesn't
arrive by the time the polls close on Election Day. (This suggests that
Barrett isn't necessarily needed for some cases.) The frightening part
of that is Justices Gorsuch and Kavanaugh agreeing with William
Rehnquist's lonely concurring opinion from the

**Bush v. Gore** case, that only state legislatures set election rules,
effectively invalidating judicial review for elections at the state
level.

That invites a Court with Barrett on it to use the theory to invalidate
untold ballots from swing states
,
particularly Pennsylvania and North Carolina where there are cases lined
up, in an attempt to eke out an election for Donald Trump. More
ominously, Kavanaugh's concurring opinion appeared to suggest that
only votes counted on election night count
for the
election. Kavanaugh also cited a legal scholar who came to the opposite
conclusion
than he
did about mail-in ballots. The entire point is to reach for any
justification to get to the pre-ordained result, one that would suppress
the vote and tip the election.

This is where that burgeoning early vote

does come into play. Like a national version of the Streisand effect, by
loudly declaring that certain late-arriving ballots may not be counted,
the Court and the Republicans are surging Democrats to the polls as soon
as humanly possible. Late-arriving ballots typically skew Democratic,
but that may not be the case this year. And inclement weather or, I
don't know, a pandemic, could keep Republican voters
disproportionately waiting for Election Day from the polls. This
attempted putsch could backfire. But that doesn't make it less scary,
since the intent is to deny the rightful vote of an untold number of
people. Democrats will need to reckon with a Court likely to be this
drunk on its own power.

**Read all of our Election 2020 news here**

It's A Good Time To Donate!

Pandemic Watch

Amid all the bad news, the promising development is that AstraZeneca has
reported that its coronavirus vaccine has produced an immune response

in both older and younger adults. This isn't the end of the story, of
course, just a preliminary statement. But the vaccine process,
relatively speaking, has been smooth, and AstraZeneca has been among the
most forthright and willing to show their data. With hospitals in some
parts of the country filling up again
,
here's hoping this is a sign of the end of the beginning, if not the
beginning of the end.

**Read all of our Unsanitized reports here**

We Really Can't Do This Without You!

**Days Until the Election**

7.

Today I Learned

* The Nib has immortalized me in cartoon form
, in a comic that draws
from my book

**Chain of Title**. (The Nib)

* Amazingly, Trump is not running

on any second-term agenda. (Axios)

* As I said

two weeks ago, Trump is running away precipitously

from his immigration record. (

**Wall Street Journal**)

* We could see runoff elections in early January in both Senate races

in Georgia. (

**Atlanta Journal-Constitution**)

* Fox News on the Hunter Biden beat

to a greater degree than the "but her emails" beat. (

**New York Times**)

* Speaking of Fox, they might not have any anchors left for Election
Night coverage because they're all on COVID quarantine
.
(Daily Beast)

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