Senate confirms Barrett, delivering for Trump and reshaping the Supreme Court
(Patrick Semansky | AP) President Donald Trump watches as Supreme Court Justice Clarence Thomas administers the Constitutional Oath to Amy Coney Barrett on the South Lawn of the White House in Washington, Monday, Oct. 26, 2020, after Barrett was confirmed by the Senate earlier in the evening.
Washington • Judge Amy Coney Barrett, a conservative appeals court judge and protégée of the late Justice Antonin Scalia, was confirmed on Monday to the Supreme Court, capping a lightning-fast Senate approval that handed President Donald Trump a victory before the election and promised to tip the court to the right for years to come.
Inside a Capitol mostly emptied by the resurgent coronavirus pandemic and an election eight days away, Republicans overcame unanimous Democratic opposition to make Barrett the 115th justice of the Supreme Court and the fifth woman. The vote was 52-48, with all but one Republican, Susan Collins of Maine, who is battling for reelection, supporting her.
It was the first time in 151 years that a justice was confirmed without the support of a single member of the minority party, a sign of how bitter Washington’s war over judicial nominations has become.
The vote concluded a brazen drive by Republicans to fill the vacancy created by the death of Justice Ruth Bader Ginsburg just six weeks before the election. They shredded their own past pronouncements and bypassed rules in the process, even as they stared down the potential loss of the White House and the Senate.
Democrats insisted Republican should have waited for voters to have their say on Election Day. They warned of a disastrous precedent that would draw retaliation should they win power, and in a last-ditch act of protest, they tried unsuccessfully to force the Senate to adjourn before the confirmation vote.
Republicans said it was their right as the majority party and exulted in their win. In replacing Ginsburg, a liberal icon, the court is gaining a conservative who could sway cases in every area of American life, including abortion rights, gay rights, business regulation and the environment.
“The reason this outcome came about is because we had a series of successful elections,” said Sen. Mitch McConnell, R-Ky., the Senate majority leader, who was the architect of the strategy. “What this administration and this Republican Senate has done is exercise the power that was given to us by the American people in a manner that is entirely within the rules of the Senate and the Constitution of the United States.”
Barrett’s impact could be felt right away. There are major election disputes awaiting immediate action by the Supreme Court from the battleground states of North Carolina and Pennsylvania. Both concern the date by which absentee ballots may be accepted.
Soon after, she will confront a docket studded with major cases on Trump’s policies, not to mention a potential challenge to the election results that the president had cited as a reason he needed a full complement of justices before Nov. 3. Coming up quickly are challenges related to the Affordable Care Act, signature Trump administration immigration plans, the rights of same-sex couples and the census.
The court is also slated to act soon on a last-ditch attempt from Trump’s personal lawyers to block the release of his financial records to a grand jury in Manhattan.
No Supreme Court justice is a certain vote, and Barrett pledged during her confirmation hearings to be an independent mind. But she is widely viewed by both parties as a judge in the mold of Scalia, her mentor, who would rule consistently in favor of conservative positions.
A jubilant Trump, working to bolster his flagging reelection campaign, held an unusual swearing-in ceremony shortly after the vote on Monday night on the White House lawn.
“She is one of our nation’s most brilliant legal scholars, and she will make an outstanding justice on the highest court in our land,” Trump said.
Justice Clarence Thomas administered the oath to Barrett, who chose him for the occasion.
“It is the job of a judge to resist her policy preferences,” she said after thanking the president and top Senate Republicans. “It would be a dereliction of duty for her to give into them. A judge declares independence not only from Congress and the president, but also from the private beliefs that might otherwise move her.”
Afterward, Trump escorted Barrett to the Truman Balcony, where they posed and he waved to the hundreds assembled on the lawn below as patriotic music played. It was a scene more befitting a political rally than the installation of a Supreme Court justice. To hold the event at all was a remarkable choice after a similar one announcing Barrett’s nomination one month ago to the day turned into a coronavirus superspreader event.
It might never have materialized had Ginsburg, 87, who had been determined to stay on the court rather than be replaced with a justice of Trump’s choosing, not died of cancer only weeks before Election Day. Before she died, she had told her granddaughter she wanted a new president to install her successor — a deathbed wish that Republicans made clear they had no intention of honoring.
Barrett, 48, was Trump’s third nominee to the Supreme Court, but arrayed beneath her were 162 new district court judges and 53 appeals court judges who have been installed by Republicans over the past four years, roughly a third of the entire federal appellate bench. Together, they could hold broad sway over American law and policy long after Trump leaves office.
Democrats sought to churn up a storm of outrage that they hoped would help sweep Republicans out of power and could set the stage for their own majority should it come to be.
Citing Barrett’s academic writings and decisions from the appeals court bench, they argued that she would pose an immediate threat to the Affordable Care Act in the middle of a national health crisis, and that she would upend abortion rights and other popular freedoms enjoyed by Americans.
Taking aim directly at Republican senators, they warned that the decision to rush ahead with the election-season confirmation four years after denying a vote to Judge Merrick Garland, President Barack Obama’s Supreme Court nominee, under similar circumstances would come to haunt them.
“You may win this vote, and Amy Coney Barrett may become the next associate justice of the Supreme Court,” said Sen. Chuck Schumer of New York, the Democratic leader. “But you will never, never get your credibility back. And the next time the American people give Democrats a majority in this chamber, you will have forfeited the right to tell us how to run that majority.”
Republicans claimed the circumstances were different this time because they control both the White House and the Senate. But Republicans' hardball tactics were fueling a drive by the Democratic Party’s left flank to seriously consider if they take power eliminating the last remaining vestige of minority rights in the Senate, the legislative filibuster. They could then proceed to expand the size of the Supreme Court to install liberal justices.
Former Vice President Joe Biden, the Democratic presidential nominee, and leaders in the Senate have declined to discuss plans that could amount to a significant and potentially destabilizing escalation in the fight over the judicial branch. But on Monday, even some more moderate senators hinted that the path was open before them if they needed to take it.
“They expect that they’re going to be able to break the rules with impunity, and when the shoe maybe is on the other foot, nothing’s going to happen,” Sen. Angus King, I-Maine, who votes with Democrats, said of the Republicans. “One of the things that’s amazed me since I’ve come here is how people feel they can do things to one another and never have it have any consequences.”
For all of the partisan vitriol, the confirmation process played out with remarkably little drama. Republicans quickly coalesced around filling the seat, regardless of whom Trump nominated, and that left Democrats with very little to do but turn to dilatory tactics and make their case to voters. So rich was the prize that Republicans quickly reversed statements from 2016 and 2020 pledging not to fill an election-year seat until the voters had a say.
Barrett’s qualifications were really never in question, though she had less experience than some of her recent predecessors. But in three days of confirmation hearings, she managed to reveal vanishingly little about how she might look at or rule on matters of public interest before the court.
“Judge Barrett may have established herself as the Babe Ruth of saying pretty much nothing,” Sen. Ron Wyden, D-Ore., lamented Monday.
Still, she did earlier criticize Chief Justice John Roberts for voting to uphold the Affordable Care Act. It is a good bet that she will be among the court’s most conservative justices, probably to the right of Roberts and Justice Brett Kavanaugh.
Like five other justices, Barrett is Catholic. She has said her faith is central to her identity, and before she joined the appeals court bench, she signed onto statements advocating the repeal of Roe v. Wade and its “barbaric legacy.” But in other ways, she breaks the court’s mold. A Notre Dame alumna, she will be the only justice who did not graduate from Harvard or Yale. She is also raising seven children, two of whom were adopted.
After playing down its implications during the hearings, some Republicans openly celebrated her anti-abortion rights stance Monday.
“The nomination of Amy Coney Barrett is truly historic,” said Sen. Josh Hawley, R-Mo. “This is the most openly pro-life judicial nominee to the Supreme Court in my lifetime. This is an individual who has been open in her criticism of that illegitimate decision, Roe v. Wade.”
By the time senators gathered Monday night for the final vote, many were exhausted from a debate that had lasted through Sunday night into Monday and from jetting back and forth between Washington and the campaign trail.
But after Sen. Charles E. Grassley of Iowa, the president pro tempore, read the tally, Republicans leaped up from their desks and applauded. Only two did not join them.
One was Collins, who had left the chamber as soon as she cast a “no” vote. She had framed her decision this time as a matter of principle. Republicans set a standard in 2016 by not confirming a nominee in an election year and should do the same now, she argued. She is trailing in a race in a liberal-leaning state in part because of her constituents' fury at her vote for Kavanaugh, Trump’s last nominee.
The other was Sen. Lisa Murkowski of Alaska, another Republican swing vote, who sat stone-faced. She ultimately voted to confirm Barrett, but said she feared the hit the court and the Senate would take with the public for proceeding as voters cast their ballots.