Well, that’s over. What had been certain to happen did happen. As the Washington Post dutifully reported, eight days before Election Day, Republicans, likely to lose the White House and the Senate, and clearly not going to win back the House, got the real change they wanted:
A bitterly divided Senate confirmed Amy Coney Barrett as the 115th justice to the Supreme Court on Monday, elevating just the fifth woman to the court in its 231-year history and one who further cements its conservative shift – a legacy that will last even if Republicans lose power in next week’s elections.
The vote was 52 to 48 for Barrett, President Trump’s third nominee to the Supreme Court. The 48-year-old jurist solidifies a judicial legacy for the White House and Senate Republicans that also includes dozens of younger and more ideologically conservative judges on the federal appeals courts.
An acolyte of the late Justice Antonin Scalia, Barrett is certain to diverge dramatically from the woman she succeeds: Justice Ruth Bader Ginsburg, who died Sept. 18 and was for decades an enduring icon for liberals.
In short, they never could get anything done through the long hard slog of getting the votes to get anything done – the majority rule idea – so they’ll work out a way to change the courts without majority support for any of their policy positions – the minority rule idea. They won’t need votes to get rid of Obamacare or outlaw abortion and birth control too. They have the courts. The courts can declare anything unconstitutional, from environmental laws to any new voting rights act. The votes in the House and Senate don’t matter. No votes in any election matter. They control the mechanism that actually determines the law. And that has nothing to do with any majority thinking by anyone. And now the Democrats finally get it. They were outmaneuvered:
Incensed Democrats charged Republicans with hypocrisy for blocking President Barack Obama’s Supreme Court nominee for eight months in 2016 and repeatedly pointed out that no justice has been confirmed this close to a presidential election.
“The American people will never forget this blatant act of bad faith. They will never forget your complete disregard for their voices, for the people standing in line right now voting their choice, not your choice,” Senate Minority Leader Charles E. Schumer (D-N.Y.) said shortly before the vote.
Yeah, well, forget the people standing in line right now voting their choice, not the minority Republican choice. They’re the suckers and losers here:
“The reason we were able to do what we did in 2016, 2018 and 2020 is because we had the majority,” Senate Majority Leader Mitch McConnell (R-Ky.) said moments after Schumer.
What he was saying is that those who control the Senate, one half of one third of the three branches of government, by even one vote, control everything. What, Chuck, you didn’t know that? Well, it’s too late now:
In an outdoor ceremony at the White House an hour later, Justice Clarence Thomas administered the constitutional oath to Barrett, with Trump and several Republican senators looking on.
Barrett, who faced repeated questions at her confirmation hearings about Trump’s preferred outcome for court rulings, delivered brief remarks on judicial independence in an unusual move for a new justice.
“A judge declares independence not only from Congress and the president, but also from the private beliefs that might otherwise move her. My fellow Americans, even though we judges don’t face elections, we still work for you,” she said.
And all the Republicans there sniggered:
Barrett solidifies a 6-to-3 conservative majority on the court and will be in a position to immediately hear contentious cases on elections and health care. A centerpiece of the Democrats’ strategy against Barrett was the pending case on the fate of the Affordable Care Act, set for oral arguments at the Supreme Court on Nov. 10. The Trump administration and Republican attorneys general argue that the entire 2010 health-care law and its protections for millions of Americans with preexisting medical conditions should be invalidated.
All the Republicans there smiled:
Barrett assiduously declined to hint at how she would rule on that case, California v. Texas, as well as evaluate existing Supreme Court precedents on abortion, gay rights and use of contraceptives.
She attempted to differentiate herself from her mentor, Scalia, and, despite her personal and well-documented opposition to abortion, told senators that she would not abide by the “law of Amy,” but rather that of the American people. She also came under pressure from Democratic senators to recuse herself from any election-related challenges involving the president who nominated her, but Barrett declined to do so, instead promising that she will be an independent jurist.
“I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide this election for the American people,” Barrett told senators during her confirmation hearing.
That’s nice, but she’s not going to recuse herself from anything:
The court resumes oral arguments next Monday, and two of its biggest cases of the term are scheduled, including the challenge to the healthcare law. While the rest of the country is still counting votes Nov. 4, the court will take up a legal fight from Philadelphia, where city officials ended a contract with Catholic Social Services to provide foster care services because the agency said it would not accept applications from married same-sex couples. A lower court has agreed the city can enforce its anti-discrimination policy, which protects sexual orientation.
A broad ruling could decide when religious organizations deserve exemptions from anti-discrimination laws that the groups say would cause them to violate deeply held beliefs, such as what constitutes a marriage.
So, there it is again. Obamacare is as good as gone, and then the religious freedom stuff returns. No one can be forced to obey any law that rips them away from Jesus and what He would want. No one should be forced to rent to gays, or treat them for anything in a hospital or clinic, or to sell them any good and services. They law says one thing. Jesus says another. Now the highest court will side with Jesus, and of more immediate concern, with Trump. The cases are lined up for that:
The court will meet in private conference Friday – most likely by teleconference – to review cases that could still be added to this term’s docket.
And there are four emergency requests pending at the court — three involving election procedures in the battleground states of Wisconsin, North Carolina and Pennsylvania, plus a request from Trump that the court temporarily stop a subpoena from Manhattan District Attorney Cyrus R. Vance Jr. (D) seeking the president’s private financial records.
Trump is counting on her, and Dana Milbank is appalled by all this:
Monday’s Senate confirmation of Amy Coney Barrett to the Supreme Court, preceded by a pell-mell scramble to seat her before next week’s election and followed by an unseemly campaign-style celebration at the White House, shreds whatever remained of the high court’s integrity and independence.
Whether the court regains its independence or cements itself as a third partisan branch of government is now largely up to Chief Justice John Roberts. If he does not act, and fast, to mitigate the court’s politicization, Democrats will be fully justified in expanding the court’s membership to restore balance – and indeed will face a public outcry if they don’t.
But what can Roberts do? This is just a mess:
The Barrett spectacle could not have been uglier. It began with a superspreader event at the White House after which a dozen people, including President Trump, contracted COVID-19. Trump insisted on naming a replacement even before Ruth Bader Ginsburg was in her grave, and he belittled the late justice’s granddaughter for conveying the women’s rights icon’s dying wish that Trump not replace her.
Senate Republicans rammed through Barrett eight days before an election Trump seems likely to lose, and even though Trump has made clear he’s counting on the Supreme Court to overturn the result. They did this in an extraordinary public display of hypocrisy, four years after refusing to seat an Obama nominee to the high court because, they said then, that doing so more than eight months before an election was too soon. And they did this after abolishing the minority’s right to filibuster.
And now there’s this:
Barrett, in her confirmation hearing, made a mockery of the supposed “originalism” and “textualism” she professes to practice. She conspicuously refused to say whether a president could unilaterally postpone an election and whether voter intimidation is illegal – matters unarguable under the clear words of the Constitution and statutes.
Milbank is a bit frustrated and can only offer this:
If the chief justice wishes to restore dignity to the Roberts Court, it’s clear enough what needs to be done:
He can lean heavily on Barrett to recuse herself from any case arising from the presidential election next week.
He can use his influence to make sure the court upholds the Affordable Care Act after it hears arguments next month – not a legalistic punt on technical matters of “severability” but a ruling that puts an end to the constant assaults on Obamacare.
He can persuade his conservative colleagues to join him in upholding the rights of LGBTQ Americans as established in the 2015 Obergefell case, by rejecting a challenge to it by Catholic Social Services that will be argued the morning after the election next week.
He can forge a majority to reject Trump’s latest tired attempt to use the Supreme Court to further delay handing over his financial records to New York prosecutors.
And he and his colleagues can agree to hear one of the many challenges to Roe v. Wade now making their way through lower courts – and vote to uphold Roe for now. That would be the surest sign that the Roberts Court is not going to turn (immediately at least) into the reactionary caricature that most expect.
And none of that is likely. That Atlantic’s Emma Green explains why:
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.”
This is quite simple. The entire concept is that this is a way to grab what little power is still possible for them:
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.”
This, at least, will be that one success in the four years of all the Trump nonsense:
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.”
And this was something. This was all they had. And this may be all they will have to show for the Trump years, but Green notes something else:
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.”
That’s one way to keep it 1953 in America for just a few more years. That demographic wave will bury them, but not just yet, and that’s a comfort.
And that sort of thing has ruined the courts. The legal scholar Garret Epps offers this:
Whatever role the Supreme Court plays in American life in the decades to come – whether it sits as the dead hand of the legal right, poised to strangle progressive legislation and individual rights, or is properly reformed by a Democratic administration – it will never be what it was before. For much of its life, it was flawed but respected arbiter of law and the Constitution, cursed by some but accepted by all.
But that’s over now:
Why equivocate? This rushed, farcical nomination is a direct contradiction of every solemn assurance that McConnell and others in his party gave the nation four years ago, not a bizarre happenstance. It is a page straight out of the playbook of countries like Hungary, Poland, and Venezuela, where a previously independent judiciary has, by fair means or foul, been brought under the authoritarian boot.
This is not a court of law now, or of justice, but just another political operation, one than had been set in motion years ago:
We lawyers can, in the bleak times ahead, play the parlor game of asking when the idea of independent justice began to disappear. In my mind, the first signs appeared in 2000, when, with a rationale so cynical that it resembles not so much judicial reasoning as an upraised middle finger, the conservative majority on the Supreme Court installed George W. Bush as “winner” of the presidential election. “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election,” Justice John Paul Stevens wrote in his dissent in that case, “the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
We can disagree about which Roberts Court opinions fit into the ensuing downward arc: Citizens United and the other cases that turned politics over to the wealthy and “dark money”; Shelby County v. Holder and other assaults on the right to vote; Janus v. AFSCME and other cases that invented the “First Amendment” attack on unions and worker protections on the job.
But the masterpiece of anti-democratic assault began in February 2016, with the death of Antonin Scalia and President Obama’s nomination of Judge Merrick Garland (a well-liked moderate whom top Republicans had previously promised to confirm) to fill his seat.
That’s what screwed up everything:
It was obvious at the time that, whatever happened with Scalia’s seat, the Court had three more very old people on it. Elementary actuarial science made clear a new court would be shaped by the winner of that November’s election. Senate history and confidential norms suggested that, whoever controlled the Senate, President Obama’s nominee should be considered. If there was an argument against confirmation, then (as with the nomination, in June of 1968, of Abe Fortas to be Chief Justice) opponents were free to make their case, and even to filibuster, as they did half-a century ago until Fortas at last withdrew.
This is how the system is supposed to work. Nominate, advise, and consent or not.
But by 2016, the American right – the megadonors, the dark money groups, the Judicial Crisis Network and the Federalist Society – coveted total control of the Court. And so was born, out of thin air, the “rule” that presidents in their final year of office could not nominate a Justice.
And that changed everything:
The seat was now partisan property, McConnell and the Republicans said. Donald Trump joined in: “I think the next president should make the pick, and I think they shouldn’t go forward, and I believe I’m pretty much in line with what the Republicans are saying,” he said on March 16.
This, just to be clear, was the “stolen seat.” It signaled the end of any pretense of normality and marked the Court as a potential Republican governing partner, a target for hostile takeover. That suggestion became explicit when candidate Trump promised that the reversal of Roe v. Wade “will happen automatically, in my opinion, because I am putting pro-life justices on the court.” To underscore the point, Trump released a list of these potential “pro-life justice.”
That seat was filled by Neil Gorsuch. In that case, there was the pretense of normality. Gorsuch was vetted, and in his elephantine, condescending way, at least pretended to answer questions from Senators of both parties at judiciary hearings.
But then, in 2018, it was Brett Kavanaugh, and no one was pretending anything noble at that point:
Even before hearings began, the White House announced there wasn’t time to turn over to the Judiciary Committee documents that would show Kavanaugh’s record as a George W. Bush staffer. The answer, of course, would have been to delay the confirmation hearings – but there was an election coming (do you sense a theme here?) and the Republicans sensed (probably wrongly) a winning issue in forcing a vote. They also had a nominee designed to their specifications: Kavanaugh made no secret of his extremism on issues of gun safety, reproductive choice, and executive power.
But then things got strange:
Their haste lost any shred of decency when accusations – highly credible ones – emerged suggesting that the nominee had, as a teenager, committed sexual assault. Kavanaugh’s response was one of the most extraordinary performances in the history of the judiciary – a snarling, threatening, vile and overtly partisan assault on anyone who challenged his title to a seat he treated as property. Witnesses were proffered to corroborate Christine Blasey Ford’s charge. But a phony FBI “investigation” refused even to hear them, and on October 5, 2018, this wretched simulacrum of a judge was wedged onto the Court.
So here we are now:
Another election year, another display of banana republic partisan muscle. Before Justice Ruth Bader Ginsburg could even be buried, Trump had nominated a woman who seems likely to undo her entire legacy; and election-year rules had been reversed because – because, this time, the Republican party, which had demanded delay in 2016, now saw advantage in indecent haste.
There was no pretense of vetting; the nominee essentially rolled her eyes at Democrats’ questions. She knew – they knew – the entire country knew – that the fix was in. She would be seated; she would be seated before the election; and she would not promise not to take us full circle, to a potential Bush v. Gore coup d’état even more disastrous than the first.
So, for Epps, there’s only this:
As this vile mummery played out, I mourned – not for the first time – the idea of a Court that was property of the nation, not of party; that sought justice, not ideological advantage; that earned a nation’s respect, not its gaping horror.
We shall not look upon its like again.
Donald Trump made sure of that.