In any other context, it would be fairly unusual to have such an intense political debate about the appointment of such an obviously-qualified candidate for the Supreme Court as Judge Amy Coney Barrett. But this is 2020 and everything is unusual.
Judge Barrett, a mother of seven, demonstrated exceptional poise and knowledge through three days of grueling Senate committee hearings. Her exemplary performance under scrutiny, her career as a scholar of the Constitution, and her undeniable brilliance mark her as well-qualified for the court and a role model for young women.
Encouragingly, the public has taken notice. When Barrett was first nominated and the public knew mainly that she was a nominee of President Trump, a mere 37% of voters favored her confirmation, compared to 34% who opposed. Two weeks later, support has grown to 48% with just 31% opposed. Even among Democrats, support has nearly doubled.
More significantly, 44% of voters say she should be confirmed as soon as possible, regardless of who wins the election, compared to just 36% who say she should be confirmed only if President Trump is re-elected.
One Colorado senator, Republican Cory Gardner, has expressed his support for Barrett, but the other, Democrat Michael Bennet, has lined up with his party in opposition.
Why such a partisan divide over an obviously-qualified candidate?
First, because Barrett would replace the late Justice Ruth Bader Ginsburg, a stalwart on the Left. Barrett holds an originalist philosophy, explaining, “A judge must apply the law as written, not as the judge wishes it were.” Ginsburg was an activist, shaping her opinions on the constitution to fit her own preferred outcome.
Secondly, because the American Left views the Supreme Court as its ace-in-the-hole, a super legislature that can change the meaning of established law in ways that were never approved or intended by our elected representatives.
Finally, because it galls many on the Left that Donald Trump could appoint three Supreme Court justices in just four years. The appointments of Brett Kavanaugh and Barrett, both of whom occurred during the ordinary course of Trump’s presidency, should be non-controversial. After all, had these vacancies occurred under a Democrat president and Democrat-controlled Senate, there’s no doubt they would fill the seats.
What infuriates Democrats is that when Justice Antonin Scalia died four years ago, during a presidential election year, the Republican-controlled Senate did not hold a hearing on President Obama’s choice to replace him. After Trump’s upset victory, that allowed him to appoint now-Justice Neil Gorsuch.
At the time, Republican senators rationalized that the Senate shouldn’t appoint a new justice during a presidential election year, and of course, Democrats argued that they should. Now, both parties are talking out of the other side of their mouths.
The constitutional reality is that it is the President’s job to nominate a justice and the Senate’s job to “advise and consent.” If the President and the Senate majority hail from the same party, that’s a fairly simple process. But in the last 40 years as Supreme Court appointments have become more contentious, based on a judge’s judicial philosophy rather than their career qualifications, the Senate is no longer a rubber-stamp for a President of the other political party.
Some Democrats threaten to retaliate with “court packing” if Joe Biden is elected president and Democrats win control of the Senate. That’s exceedingly short-sighted.
The Supreme Court has remained at its current nine justices for more than 160 years. Even a titan like Franklin Roosevelt backed away from the idea of court packing. Arbitrarily adding judges only reenforces the notion that the Court is just another political branch. Once the mold is broken, Republicans will surely add their own justices next time they have the chance.
Barrett is an exemplary choice who has proven her mettle. She deserves to be confirmed.