The Inevitability of Amy Coney Barrett

1 month ago

Senate Republicans were always going to confirm Amy Coney Barrett to a lifetime appointment on the Supreme Court. Conservative voters wanted it, and the party united around the concept. Republicans “believe voting on this justice is a constitutional duty. The nomination happened. There was time to get it done. So they got it done,” Steven Duffield, a Republican former senior Senate aide, told me. Even the highest-ranking Republican leaders aren’t shy about admitting that this may be the party’s last gasp before losing political power for a while. “A lot of what we’ve done over the last four years will be undone sooner or later by the next election,” Republican Senate Majority Leader Mitch McConnell said during a speech yesterday. The Democrats “won’t be able to do much about this for a long time to come.”

As it has become harder for the two parties to achieve their goals legislatively, the Supreme Court has become the ultimate trophy, a way to maintain influence over federal policy even when they get voted out of power. Barrett’s confirmation may lead to vicious reprisals in the war over the judiciary, which Republicans openly worry about. But for now, they are just enjoying their success. “The chief value proposition of Donald Trump’s presidency is appointees,” Noah Rothman, an editor at Commentary, told me. Barrett’s confirmation may be “the last act of this presidency,” and if Trump loses next week, “Republicans will look back on [it] fondly.”

[Read: The true victors of Trump’s Supreme Court nomination]

Barrett is ascending to the high court just eight days before an election that Republicans apparently expect to lose. The stakes couldn’t be higher: In her first few weeks on the job, Barrett is slated to hear a case that could end up overturning the Affordable Care Act, along with a case about whether the government can require a Catholic foster-care agency to place children with same-sex couples. At 48, Barrett will be the youngest justice on the bench, cementing a 6–3 conservative majority. Over the past 50 years, three-quarters of Supreme Court justices were named by Republican presidents, and her appointment will further consolidate the conservative influence on America’s judiciary.

Democrats have spent the past month arguing that Barrett’s appointment is “the most rushed, the most partisan, and the least legitimate nomination to the Supreme Court in our nation’s history,” as Senate Minority Leader Chuck Schumer recently said at a press conference, in large part because it’s happening right before the election. “I don’t even come close to buying that,” Gregg Nunziata, a former chief nominations counsel to the Senate Judiciary Committee, told me. Especially after Justice Brett Kavanaugh’s contentious confirmation battle, Republicans believe Democrats have fully embraced norm-breaking in order to win, including by throwing out Senate rules to confirm Democratic nominees and by using procedural maneuvers to tank a Republican nominee. “Why should our guys play by some enhanced rules of etiquette?” Nunziata said. Republicans have followed suit: Senator Lindsey Graham of South Carolina reversed his position on confirming Supreme Court nominees in an election year after Justice Ruth Bader Ginsburg’s death. Besides, the Democrats never had the votes to stop Barrett from getting through. “The fits of pique that we witnessed from Democrats and progressive activists around this event [have] been uniquely impotent,” Rothman said.

[Read: How conservatives really feel about Amy Coney Barrett]

Republicans claim that Barrett’s confirmation is not about securing a justice who will be friendly to Republican causes: Conservatives look for justices “who have a fealty to the Constitution and not to particular policy goals,” Duffield said. But even among themselves, conservatives disagree about the extent to which Republicans look to the Supreme Court as a firewall for their agenda. Conservative advocacy groups spent millions on swing-state ads meant to pressure Republican senators, points out James Wallner, a Republican former senior Senate staffer and current fellow at the R Street Institute. “It’s nonsense to suggest it’s not supposed to be political,” he told me.

Even after four years of controlling the Senate and the White House, along with two years of holding the House of Representatives, “Republicans don’t have a lot to show for [themselves],” Wallner said. “Confirming Barrett right before Election Day is a continuation of a trend: We have to do something.” In the absence of major legislative achievements, he said, the judiciary has become an arena where Republicans, the party of small government, look to entrench their power. The party’s instinct “is not to check the Court. It’s to control the Court,” Wallner said.

For voters who care intensely about Supreme Court justices, Barrett’s confirmation is unlikely to change their minds about their preferred candidate. And for voters who don’t follow judicial nominations that closely, it seems unlikely that this confirmation would decide their vote. After all, the president has already appointed two other Supreme Court justices and filled 217 other federal-judiciary seats. Republicans are already anticipating the worst for next week: “It could be a bloodbath of Watergate proportions,” Senator Ted Cruz of Texas recently said on CNBC. Republican losses could continue long after 2020. As my colleague Ronald Brownstein recently wrote, the courts may provide conservatives with recourse against a growing Democratic majority, built on the diversity of Millennial and Gen Z voters: “Every young conservative judge that the GOP has stacked onto the federal courts amounts to a sandbag against that rising demographic wave.”

[Read: What the rush to confirm Amy Coney Barrett is all about]

The long-term consequences are the ones that will matter: whether Democrats will seek their revenge by attempting to pack the court with liberal-friendly justices after the election, for example, and whether any hope of bipartisan cooperation on judicial nominations is officially dead. “With the erosion of norms, I do worry that, long-term, both parties will be more tempted to put on the bench more explicit partisans, rather than searching for legal excellence,” Nunziata said. In a different time, under a different president, it’s possible that the vote on Barrett’s nomination would have gone differently—less drama, more senators willing to cross party lines. Barrett got unlucky with the timing of her nomination, becoming the face of a political fight she had no control over. “For her sake, and for the sake of the republic, it would have been nice had this process occurred earlier. But that’s not the way Supreme Court vacancies work,” Nunziata said.

Republicans understood perfectly that Democrats would protest against installing a justice to the bench just a few days before a potentially transformative election. But Republicans are determined to use their power while they still have it. “It may not be prudent to proceed with filling a vacancy at this time,” Nunziata said. “But we don’t live in an age or enjoy a politics marked by prudence.”

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