September 26, 2020

Rushed Nomination Amid Election and Pandemic Threatens Supreme Court's Legitimacy

Contact: Nancy Rodriguez

“With this naked power grab to steal yet another Supreme Court seat, Donald Trump and Mitch McConnell are playing with fire. But it is the American people who could get burned.” — American Constitution Society President Russ Feingold

Washington, DC – Following President Donald Trump’s announcement that he is nominating Judge Amy Coney Barrett to be an Associate Justice of the U.S. Supreme Court to fill the vacancy left by the death of Justice Ruth Bader Ginsburg, American Constitution Society President Russ Feingold issued the following statement:

"Donald Trump’s and Mitch McConnell’s actions threaten America’s governing institutions with permanent damage. They put at risk not only the foundations of our democracy, but also the health and wellbeing of the American people.

By committing to this course, they have virtually guaranteed that the Senate, which has already failed to pass additional legislation to provide aid to Americans badly in need of it as a result of the COVID pandemic, will be consumed by a rushed and chaotic nominations process. Instead of relief, President Trump and Senator McConnell offer only a nominee who, if confirmed, would be committed to striking down the Affordable Care Act (ACA) and ending its protections for people with preexisting conditions.

President Trump has stated that he only wants to nominate justices who would strike down the ACA and so we should take him at this word. The Supreme Court will hear arguments on November 10 – one week after the election – in a case in which anti-ACA zealots ask the court (for the third time) to do for them what they have repeatedly failed to achieve through the legislative process.

More broadly, we have come to the point where any nominee put forth by the Right’s judicial nominations infrastructure, dominated as it is by billionaires and big business, would necessarily pose a grave threat to protections Congress has put in place for the safety of all Americans. Clean air and water protections, food and drug safety, regulation of the health care and health insurance industries, consumer protection and workers’ rights would all be placed at risk by this nominee.

This illegitimate process, if carried though to conclusion, will result in yet another justice joining the right-wing bloc on the court in a manner that poses a grave threat to the Court’s legitimacy. The nomination follows close upon Republican’s theft of a Supreme Court seat from President Obama in 2016 and the disgraceful fiasco that resulted in Brett Kavanaugh joining the Court after proclaiming himself to be a bitter and vindictive partisan. As a result, if this nominee is confirmed under these circumstances many Americans will ask whether the Court itself is any longer accountable to the Constitution rather than an ideological faction.

Americans are already voting in an election that will determine who will be sworn in as President on January 20, 2021. Trump and McConnell are expressing contempt for the voters by attempting to railroad through this nominee. The nominee, should she be confirmed in this manner, will forever be tarred with the partisanship, hypocrisy and bias that characterize this nominations process. So too would be the Court she would join.

For the sake of the Court, the Senate must not take up a nomination to fill the vacancy left by Justice Ginsburg’s passing until after the inauguration of the next president, who would then put forth a nominee.

If, however, the President and the Senate majority ram through this illegitimate nomination and the Court so constituted proceeds to inject itself in a partisan manner into possible controversies surrounding the election (as President Trump seems eager to see), the time for warning of risks and threats to the Court’s legitimacy will have passed. The damage will be done, it will be irreparable, and we will all be the worse for it.

With this naked power grab to steal yet another Supreme Court seat, Donald Trump and Mitch McConnell are playing with fire. But it is the American people who could get burned."



ACS believes that the Constitution is “of the people, by the people, and for the people.” We interpret the Constitution based on its text and against the backdrop of history and lived experience. Through a diverse nationwide network of progressive lawyers, law students, judges, scholars, and many others, we work to uphold the Constitution in the 21st Century by ensuring that law is a force for protecting our democracy and the public interest and for improving people’s lives. For more information, visit us at or on Twitter at @acslaw.