Amy Coney Barrett is a political hack
In 2016, then Notre Dame Law School professor Amy Coney Barrett argued on CBS News that Merrick Garland should not be confirmed as a Supreme Court justice in an election year. Garland, of course, was appointed by President Barack Obama to replace Justice Antonin Scalia in 2016 after Scalia’s death. That appointment was made on March 16 of that year, 237 days before that year’s election.
Barrett argued that the appointment should not go forward for two reasons. First, it was an election year. Second, Garland, at the time a 63 year-old, highly qualified centrist judge on the U.S. Court of Appeals for the District of Columbia Circuit, would “dramatically flip the balance of power on the court.”
The ideological distance between Scalia and Garland pales in comparison to the difference between Justice Ruth Bader Ginsburg and Barrett. Where Garland was a moderate who had been praised by many Republicans, Barrett is an ideological conservative, as different from the liberal lion Ginsburg as is possible. Garland was also relatively old for a Supreme Court nominee at 63. Barrett will likely serve on the Court for a long time, unless the system is reformed, given her relatively youthful 48 years. Finally, this nomination comes just 38 days before the election.
Rushing to confirm her nomination has put a number of Republican Senators in an uncomfortable position. Chief among them is Lindsey Graham, currently locked in a tight race for re-election, who argued in 2016 “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, ‘Let’s let the next president, whoever it might be, make that nomination.’ And you could use my words against me and you’d be absolutely right.”
And in 2018, Graham told The Atlantic’s editor-in-chief, Jeffrey Goldberg. “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait till the next election.”
Well… Graham is now engaging in verbal gymnastics, alternately arguing that Garland was different because the White House and the Senate were controlled by different parties, and that “after [Brett] Kavanaugh, the rules have changed as far as I’m concerned.”
Overall, the arguments in favor of approving Trump’s nominee at this late stage seem to center around the fact that “we can.” In defense of their apparent hypocrisy, Republicans claim that the Democrats would have done the same thing.
They may be right about that, with two caveats. First, when a Republican president last appointed a Supreme Court nominee in an election year and the Democrats controlled the Senate, they not only gave that nominee a hearing and a vote, two things denied Garland, they unanimously confirmed him. That justice was Anthony Kennedy, and the election year was 1988.
In other words, the crime here is not necessarily the nomination of Barrett itself. The crime is the theft of Scalia’s Supreme Court seat from the Democrats in 2016, and the treatment of Barrett only highlights how outrageous that behavior was.
Second, the rush to confirm Barrett before the general election is suspect at best. As our friend Lindsey Graham stated, the vote could come the week before the election. Such haste makes one wonder, why not wait until after the election, during the lame duck session? Certainly, having to vote on a controversial nominee puts Republican Senators running for re-election in swing states like Colorado, Arizona, Maine and Iowa in a difficult situation. If they waited until after the election, when they will still have control of the Senate and the presidency, no matter what happens in the election, they could avoid any such discomfort.
The obvious answer to this question is that Trump wants a Supreme Court he can rely upon to assist him should he lose the election. As Graham clarified for us all, “we may have litigation about who won the election, but the court will decide, and if the Republicans lose, we will accept that result.” In other words, it does not matter what the voters say, what matters is what the Court says.
One might say, well Republicans already have a majority of the seats on the Supreme Court, and you would be correct. The problem is that the Chief Justice in particular has proven difficult to pigeonhole. Indeed, John Roberts’s disdain for Trump is well known, and he has ruled against the administration in a number of cases, outraging the President.
More of concern to Trump, however, is Roberts’s independent streak. If it comes down to a choice between protecting the independence and legitimacy of the courts or keeping Trump in office, Roberts has shown on which side he will fall, and that concerns Trump.
That’s where Barrett comes in. Trump needs a reliable fifth vote, and she is it. Indeed, it would not surprise me one little bit if she has not already committed to supporting litigation aimed at keeping Trump in office despite the election results.
One might call me paranoid for this suspicion, but this administration has shown itself not to be above such machinations. After all, if you had told me even just a year ago that Trump would weaponize the post office in this election, I would have called you crazy. But here we are. And the behavior of the Attorney General has clearly shown that he has no compunction about using the Justice Department as a political tool to support Trump.
Consider William Barr’s most recent outrage. His Justice Department announced an investigation into whether Pennsylvania had engaged in voter fraud by throwing away a number of pro-Trump absentee ballots. There are so many things wrong with this event, however, that I don’t even know where to start. First, it is written policy at the Justice Department not to announce on-going investigations, as former Federal prosecutor Elie Honig pointed out.
What’s more, it turns out that many of the facts reported were simply wrong, including the number of ballots, the basis for their being thrown out, and which candidate they supported. But facts matter not to this administration. What matters is that the announcement helped support Trump in his false narrative that the election is being stolen from him. In reality, it is him, with the assistance of his Attorney General, who are seeking to steal the election, and they want a Supreme Court that will help them.
Amy Coney Barrett is just the person for this job. After all, like Justice Kavanaugh, she was part of the legal team that helped the Supreme Court overturn the will of the voters in 2000 when she worked to help Bush defeat Gore before the Court.
Indeed, it appears that Barrett’s word is worth little, especially when it conflicts with her career aspirations or her ideology. In 1998, in a law review article, Barrett argued that recusal would be the appropriate course of action for a Catholic judge who felt that his or her religious beliefs were in conflict with upholding the law. But yet in 2017, when Senators questioned her about this argument, she stated “I can’t think of any cases or category of cases in which I would feel obliged to recuse on the grounds of conscience.”
So would it be beyond Barrett to make implicit promises to Trump in her effort to get an appointment to the Supreme Court? I think not.
If there is any bright side to this controversy it is that the wrongheaded view of the courts as neutral arbiters of justice may be finally coming to an end. Like Congress and the presidency, courts are overtly political, and they always have been, going back to the days of Marbury v. Madison. Conservatives understand this fact, and that is why they have mounted a concerted campaign to take over the courts. Indeed, polling in 2019 revealed that most Americans think the Court is already too “mixed up in politics.”
A pitched battle to confirm an ideological justice so close to the election, and an effort to bolster Trump’s sagging presidency with the Court will only harden this view. The realization that courts are political, however, will empower liberals to finally treat the Court the way conservatives have. Conservatives are winning the battle for the Court because they understood it to be political. Now, liberals may be finally coming to that view as well.