Less than a month after the passing of iconic advocate for women’s rights, Justice Ruth Bader Ginsburg, President Donald Trump has nominated conservative judge Amy Coney Barrett, who seems ideologically opposed to Ginsburg in almost every way, to take her place. In an effort to confirm Barrett before the November 3 election, President Donald Trump and Senate Republicans have launched one of the speediest confirmation efforts in the nation’s history. Despite previous adamant insistence from Republicans that appointing a justice to the Supreme Court during an election year was an overreach by former President Barack Obama, almost every Senate Republican has reversed their stance on the issue and voiced their support for Trump’s nominee.
Amy Coney Barrett is a federal appellate judge and a professor of law at Notre Dame. The mother of seven is a staunch conservative, and Republicans believe she will protect the second amendment and crack down on immigration. Democrats worry that she will be the final nail in the coffin for Roe v. Wade, roll back LGBTQ+ rights, and help get rid of the Affordable Care Act.
With 53 Republican Senators, Democrats would need four to “defect” and vote against Barrett’s confirmation in order to prevent it. With only three “defectors” there would be 50 votes on either side, and the tiebreaker would be Vice President Mike Pence—who would vote to confirm.
In March of 2016, a month after the death of Justice Antonin Scalia, President Obama nominated centrist Judge Merrick Garland to the seat, who, if confirmed, would have secured a majority of Democratic appointees. In response, Senate Majority Leader, Mitch McConnell, declared that the new Justice should be chosen by the next president. The Senate Judiciary Committee’s Republican majority subsequently refused to hold confirmation hearings and allowed Garland’s nomination to expire. Prominent Republicans expressed their beliefs that the next president should choose the nominee, and President Donald Trump filled the vacancy in January with Neil Gorsuch.
Now, however, Senate Republicans are discarding their earlier views as they rush to confirm Trump’s nominee, Amy Coney Barrett, in the two months between Justice Ginsburg’s death and Election Day on November 3. The Republican Party is counting on the math to hold up in their favor, as it currently appears to. Rather than nominating a so-called “consensus” nominee, a moderate pick who would satisfy both parties (think Merrick Garland), President Trump has opted for the riskier path of nominating a staunchly conservative judge, who will divide the Senate almost exactly along partisan lines.
Since Trump nominated Barrett on September 20, every Senate Democrat has opposed her appointment. Additionally, Republican Senators Susan Collins (R-ME) and Lisa Murkowski (R-AK) expressed their opposition to an appointment so close to the election—an election which, in the era of COVID-19, actually began several weeks ago when mail-in votes and absentee ballots began to be received. While at first, Democrats were wary of how Democratic Senators Krysten Sinema (D-AZ) and Joe Manchin (D-WV), who have been known to cross party lines, would vote, they have since made it clear that they stand with Senate Democrats in their opposition to Barrett’s confirmation. Collins and Murkowski’s cross-party stances made the math very close, leaving a maximum of 51 votes in support of Barrett’s confirmation.
Many Democrats had held out hope that Mitt Romney (R-UT), the only Republican to vote for Trump’s conviction during his impeachment trials, would oppose the confirmation, but on September 22, Romney announced that he would support the confirmation. His decision effectively gave McConnell the green light to proceed with the confirmation.
At this point, Barrett’s confirmation seems almost inevitable. Still, a few distant possibilities exist that could stall the process. For example, former astronaut Mark Kelly is currently leading over incumbent Martha McSally (R-AZ), who was appointed after the death of Senator John McCain, in Arizona’s special election. If Kelly wins, he could be in office as early as November 30, and he could derail the confirmation process by taking away a vote for Barrett’s confirmation. Still, if all goes according to the current trajectory, Barrett will be confirmed before election day.
However, after President Trump and three Senate Republicans were diagnosed with coronavirus, Senate Democrats, led by Minority Leader Chuck Schumer, have also argued against a virtual or expedited confirmation, arguing that in-person hearings put the other senators’ health at risk and virtual hearings would damage the integrity of the proceedings. Despite the health concerns, the confirmation hearings began as planned on October 12 and have concluded after what was a surprisingly civil process. The Senators in isolation attended the hearings remotely, and the committee plans to vote on October 22.
This confirmation process is unlike any other in American history. Not only does it aim to be the fastest confirmation in history, but the implications of this appointment are far-reaching and long-lasting. A minority of voters are in a position to be responsible for the appointment of a justice who, at just 48 years old, could potentially serve for upwards of four decades and who would flip the court to a conservative majority. To clarify, because every state sends two Senators, states like Wyoming have as many senatorial votes as states like California. And because many of these small states tend to be rural, and rural voters tend to be conservative, the Republican majority in the Senate actually represents a minority of voters. Furthermore, with a president who lost the popular election by over three million votes and who is currently 14 points behind his opponent, this appointment feels like a constitutional mishap. It seems bizarre that the rights of the LGBTQ+ community and the right of women to have access to an abortion rested solely on the shoulders of an 87-year-old woman who was, according to many, overdue for retirement, but such is the way that the Supreme Court has operated for years.
This confirmation reveals one more instance of how much of the way our government operates relies on precedent and decorum. By repeatedly disregarding both precedent and decorum, Trump has revealed gaps in the system—a system that, for example, relies in large part on a president’s ceding his position at the end of his term to ensure a peaceful transfer of power. Such a transition seems to be in jeopardy come November. Of course, there is no historical precedent for the kind of confirmation that Senate Republicans are orchestrating. But Republicans are right when they say that both the president and the Senate have the constitutional power to do exactly what they’re doing. However, just because they can doesn’t mean they should.
The actions of Trump and Senate Republicans are driving the wedge between Democrats and Republicans deeper than ever. An important side note: it is easy for Democrats to condemn the hypocrisy and gall of the GOP. Still, it is not at all out of the realm of possibility that, given the same circumstances, Democrats would be doing exactly the same thing. In any case, Amy Coney Barrett was not chosen to appease Democrats in order to ensure confirmation. She was chosen because Republicans knew that the math is on their side.
The next two weeks will decide the future of the Supreme Court for decades to come, making one of President Trump’s most significant achievements as president one that will have occurred after more than fourteen million Americans have already voted on who will occupy his office next.