On September 26th, President Donald Trump declared his nomination of Amy Coney Barrett to fill the position left behind by Ruth Bader Ginsburg. This announcement came only eight days after the death of one of the most well known liberal figures in America. While Americans began to come to terms with a world without Ruth Bader Ginsburg, they also began to learn more about the 48-year-old woman who may replace her.
Amy Coney Barrett currently serves on the 7th Circuit Court of Appeals. She formerly worked as a law professor at Notre Dame Law School and clerked for Justice Antonin Scalia. Barrett is a devout Catholic and, while her faith is an important part of her life, she has said that her religious beliefs would not “bear in the discharge of [her] duties as a judge”. Barrett holds many conservatives views. She was a member of the Federalist Society, an organization of conservative lawyers that advocate for an originalist reading of the Constitution. On the topic of abortion, she has previously stated that “life begins at conception”. She has said that justices should not be strictly bound by Supreme Court precedents, meaning she may be open to overturning Roe v. Wade. While serving in the 7th Circuit, she dissented when voting to halt the “public charge” rule, which denies legal permanent residency to certain immigrants deemed likely to require government assistance in the future. Barrett has also been critical of Chief Justice John G. Robert Jr.'s opinion sustaining a central provision of the Affordable Care Act, suggesting she may be sympathetic to challengers of the Act. Barrett’s appointment would shift the Supreme Court’s balance to 6-3 in favor of conservatives. Justices serve for life, meaning that this appointment has the potential to influence the political landscape for years.
Following her nomination, Barrett went through an extensive vetting process. She completed a questionnaire totaling 60+ pages and was subject to a background check conducted by the F.B.I. This process ensures that any details about Barrett's life aren’t going to prevent her confirmation.
Following these proceedings was a public hearing conducted by the Senate Judiciary Committee. Beginning on October 12th, Barrett sat through four days of televised hearings as Senators attempted to parse out her character and what her actions could be if she served on the Supreme Court. Barrett’s opening statement focused on her family, her originalist application of the law, and her views on the role of the Supreme Court. Notably, she mentioned that Justice Scalia’s legal philosophy appealed and continues to influence her. Barrett described this philosophy by saying, “[it] was straightforward. A judge must apply the law as it was written, not as she wishes it were. Sometimes that approach meant reaching results that he did not like, but as he put it in one of his best known opinions, ‘that is what it means to say that we have a government of laws and not of men’”. Throughout the hearings, Barrett declined to answer questions regarding her opinions on LGBTQ+ rights, Roe v. Wade, climate change, and the Affordable Care Act. She claimed she has made no commitments on future cases and, on this basis, opted not to share some of her political views.
The many Republicans used their time during the hearings to speak on Americans’ rights. Senator Ted Cruz argued that Barrett’s nomination will block narrow margins on important court cases involving the first and second amendment. He asserted that the Democrats’ agenda was to appoint “justices who will take away your right to criticize politicians, justices who will allow censorship, justices who will allow movies and books to be banned, justices who will erase the second amendment from the Bill of Rights.” Senator Josh Hawley discussed the right to free exercise of one’s religion and its distinction from free speech. They also focused on the impartially of judges and Amy Coney Barrett would not be influenced by politics if she became a Justice. Senator John Cornyn asked Barrett, “Your mentor, Justice Scalia, said something back in 2005 that I find intriguing, but reassuring. He said, ‘If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.’ Do you agree with that?” Barrett responded, “I do agree with that and that has been my experience on the 7th Circuit so far. It’s your job to pass the statues. It’s your job to choose policy and then, it’s my job to interpret those laws and apply them to facts of particular cases and they don’t always lead me to reach conclusions if I were, you know, queen of the world… I just don’t have the power by fiat to impose my policy preferences or choose the result I prefer.”
Many prominent Democrats argued against Barrett’s confirmation. Vice Presidential candidate Kamala Harris argued that “every American must understand that with this nomination, equal justice under law is at stake. Our voting rights are at stake. Workers’ rights are at stake. Consumer rights are at stake. The right to a safe and legal abortion is at stake and holding corporations accountable is at stake.” Democrats also focused on the vulnerability of the Affordable Care Act, which will be the topic of a case appearing before the Supreme Court in November. Senators Amy Klobuchar and Cory Booker read the stories of people who would be negatively affected by the striking down of the act, emphasizing how a Supreme Court Justice’s ruling has real world effects. Barrett claimed that she is “not hostile” towards the act, although the task of dismantling the ACA has been a goal of the Trump Administration and Barrett has spoken negatively of it during her time as a professor. Republicans argued that some Democrats were unfairly attacking Barrett. Senator Joni Ernst claimed, “It’s really quite simple what your opponents are doing. They are attacking you as a mom and a woman of faith because they cannot attack your qualifications.” Similarly, Senator Blackburn stated that Democrats were attacking Barrett for “not fitting into the paradigm of the left because you are pro-life, pro-family, pro-religion…” and argued that Democrats hold a double standard for diversity when it comes to conservative women.
Apart from the usual clash between conservatives and liberals, this nomination has attracted controversy due to the approaching presidential election. In the spring of 2016, President Barack Obama nominated Merrick Garland to the Supreme Court. Senate Majority Leader Mitch McConnell declared that the Supreme Court Justice should be chosen by the next president. There was no precedent for this declaration, but the Democrats held a minority in the Senate that prevented them from forcing a committee or a floor vote. At the time, many prominent Republicans went on record to say that if a Republican president were to be in the same position as Obama, they would take similar actions against the appointment of a new Supreme Court Justice. Senator Lindsey Graham, who is the current chairman of the Judiciary Committee, said, “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” in March of 2016. However, he, like many other Republican senators, has announced his support for the nomination of Amy Coney Barrett.
Most Democrats and a few Republicans (Lisa Murkowski of Alaska and Susan Collins of Maine) have stated that they will oppose any nomination before the election. They argued that the people should have a voice in who is appointed to the Supreme Court and that it’s necessary to wait for people to cast their ballots. However, the Democrats will need to vote uniformly and have two more Republicans to join them to postpone the vote. Republicans, on the other hand, have pushed to get Barrett’s appointment voted on before election day. While it’s possible for Republicans to push through a confirmation in the 38 days following Trump’s announcement, their schedule allows little room for error. In the past 50 years, only two justices have been confirmed in a shorter amount of time: Justice John Paul Stevens (16 days) and Justice Sandra Day O’Connor (33 days).
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