October 27, 2020

Amy Coney Barrett Is a Triumph for the Constitution

Her confirmation to the Supreme Court presents voters with a real achievement.

“I’m saving her for Ginsburg,” President Donald Trump said of Amy Coney Barrett in 2018. True to his word, after Justice Ruth Bader Ginsburg died last month, Trump nominated Barrett to serve on the Supreme Court. Now-Justice Barrett was confirmed by a shamefully partisan 52-48 vote Monday night — a glaring contrast with the 96-3 display of bipartisan comity that confirmed Ginsburg in 1993. It’s also worth noting that Barrett was given her constitutional oath by Justice Clarence Thomas, who, after being subjected to Democrats’ attempted character assassination in 1991, was likewise confirmed 52-48.

Which party has politicized the Supreme Court?

Senate Majority Leader Mitch McConnell deserves immense credit for ignoring Democrats’ hyperventilating hypocrisy and nastiness toward a fine and qualified woman in order to push her nomination through before the election. Senate Minority Leader Chuck Schumer, on the other hand, defined the nastiness, grousing that Monday “will go down as one of the darkest days in the 231-year history of the United States Senate.”

The truth is that Barrett more than proved herself during Senate hearings. After Chief Justice John Roberts administered the judicial oath this morning, she took her well-deserved seat as the nation’s 115th — and only fifth woman — justice on the U.S. Supreme Court.

Now voters can decide if they’ll reward the Republicans’ calculated and precedent-following process that puts a constitutionally faithful originalist on the nation’s highest court, or if they’ll gamble on the Democrats’ bid to pack the Court and demolish America’s institutions.

Some Democrats cloaked their intentions in vague terms, following the lead of Joe Biden’s commission on court packing. Senator Kamala Harris, who may soon be president, falsely protested, “Today Republicans denied the will of the American people by confirming a Supreme Court justice through an illegitimate process — all in their effort to gut the Affordable Care Act and strip health care from millions with pre-existing conditions.” She then issued a veiled threat: “We won’t forget this.”

Massachusetts Senator Elizabeth Warren, who called Monday a “dark day,” railed against Barrett’s “illegitimate nomination.” Ohio Senator Sherrod Brown insisted that “everything is on the table” in terms of countering it. Connecticut Senator Chris Coons said he’s ready for a “wide-open conversation” because Trump’s nominees can’t “be allowed to sit peaceably.”

House Speaker Nancy Pelosi mused, “Should we expand the courts? Let’s take a look and see.”

Others just came right out and said it. “We must expand the Supreme Court,” declared Massachusetts’ other senator, Ed Markey. “Expand the court,” proclaimed both Representatives Alexandria Ocasio-Cortez and Ilhan Omar.

Which party will continue to politicize the Supreme Court?

Meanwhile, a couple of Republicans bear particular mention. First of all, Susan Collins of Maine, who’s in trouble in her reelection bid, was the only GOP senator to vote “no.” In declaring her intent, she grossly mischaracterized the Republicans’ position on Merrick Garland in 2016: “The Senate should follow the precedent set four years ago and not vote on a nominee prior to the presidential election.” That was not the precedent. The GOP went to great pains in 2016 to explain that a White House and Senate in the hands of opposing parties, not the mere fact of an election year, created the need for an electoral decision.

On the plus side are three other Republicans. As The Wall Street Journal editorial board put it, “[Judiciary] Chairman Lindsey Graham left the campaign trail to lead the Judiciary Committee hearings. Senators Cory Gardner and Martha McSally, who might lose on Nov. 3, didn’t flinch.”

And, again, McConnell has masterfully stewarded not just this nomination but those of Neil Gorsuch and Brett Kavanaugh, as well as more than 200 federal judges in the lower courts that will go a long way toward bending the judiciary back to the Constitution. He argues that Barrett’s confirmation will “not [be] a liability” for GOP Senate candidates “but an asset.” Republicans are certainly hoping he’s right and that they hold the Senate.

On a final note, we’ll excerpt some of Barrett’s remarks in Monday night’s ceremony:

Thank you, President Trump, for selecting me to serve as an associate justice at the United States Supreme Court. It’s a privilege to be asked to serve my country in this office. I stand here tonight truly honored and humbled. Thanks also to the Senate for giving its consent to my appointment. I am grateful for the confidence you have expressed in me and I pledge to you and the American people that I will discharge my duties to the very best of my ability. …

I have spent a good amount of time over the last month at the Senate, both in meetings with individual senators and in days of hearings before the Senate Judiciary Committee. The confirmation process has made ever-clearer to me one of the fundamental differences between the federal judiciary and the United States Senate, and perhaps the most acute is the role of policy preferences. It is the job of a senator to pursue her policy preferences; in fact, it would be a dereliction of duty to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give in to them.

Federal judges don’t stand for election, thus they have no basis for claiming that their preferences reflect those of the people. This separation of duty from political preference is what makes the judiciary distinct among the three branches of government. A judge declares independence not only from Congress and the president, but also from the private beliefs that might otherwise move her. The judicial oath captures the essence of the judicial duty; the Rule of Law must always control.

My fellow Americans, even though we judges don’t face elections, we still work for you. It is your Constitution that establishes the Rule of Law and the judicial independence that is so central to it. The oath that I have solemnly taken tonight means at its core that I will do my job without any fear or favor and that I will do so independent of both the political branches and my own preferences. I love the Constitution and the democratic republic that it establishes, and I will devote myself to preserving it. Thank you.

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