A long-dead author on the Supreme Court nomination

A post on Steven Vincent Benét and the Democrats’ longstanding reluctance to manipulate the courts.

Even today, while Blue Dog Democrat Joe Manchin is finally hopping mad over the hasty Barrett nomination, our own Dianne Feinstein is pooh-poohing the idea of court packing. It’s also become obvious that conservative Supreme Court justices pay attention to the timing of their replacements, and liberals do not. The only recent conservative justice to leave the bench under a Democratic President was Antonin Scalia, whose departure was unscheduled. (Last before him was the retirement of moderate-right Byron “Whizzer” White, in 1993.)

The connection to Benét is his famous short story “The Devil and Daniel Webster“, which he subsequently rewrote as a play and opera libretto. To summarize the plot, New Hampshire farmer Jabez Stone sells his soul to the Devil in return for years of good luck. Eventually Mr. Scratch returns to collect. Stone hires famed attorney Daniel Webster to try to save himself from Hell. Webster insists successfully that Stone is entitled to a trial, but the Devil in return picks the judge and jury. The judge is John Hathorne, who presided enthusiastically over some of the Salem Witch Trials. The jurors include the pirate Blackbeard and other malefactors.

Nevertheless, with his stirring advocacy (“You were men, once!”), Webster wins an acquittal, and moreover forces the Devil to agree never to bother a New Hampshireman again.

The Democratic leadership are all dreaming of their success as the modern-day Daniel Webster (who opposed the Democratic Party his entire career), who gets votes from Roberts, Gorsuch, the potential new Justice Barrett, perhaps even roué Brett Boofanaugh. Watch me salvage Obamacare, or even Roe! The conservative justices are not monolithic: Gorsuch appears to be the most sympathetic to Native Americans, including all the liberals, in at least a generation. But on cases that tilt the political playing field in the Republicans’ favor, they have never shown mercy. Bush v. Gore. Citizens United. Shelby County (Voting Rights Act). Voter ID cases. Cases on loosening rules for the 2020 pandemic. Not a single conservative defection.

Right now, the lily-white Republican Party, counting both its explicitly racist Trump vanguard and its business rump, attracts not more than 45% of the national electorate. Maintaining permanent minority rule is exactly why these Federalist Society judges are on the bench. Preservation of Republican supremacy has moved from the ballot box to the courts, and no amount of eloquence or legal brilliance will fix that. Six new progressive seats on the Supreme Court, on the other hand…

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