The Supreme Court fight of the century is, so far, a fizzle.
The ratio of progressive outrage over the nomination of federal Judge Amy Coney Barrett to supposed reasons that the U.S. Senate shouldn’t confirm her is completely out of whack — there’s a surfeit of the former and almost none of the latter.
Barrett has received extraordinary testimonials from her colleagues and students, who say she is brilliant, conscientious and kind. The opposition has countered with a dog’s breakfast of nonsense, including that her confirmation hearing can’t be held in the middle of a pandemic — when the Senate has continued its business since the pandemic began.
Upon her selection, media outlets ran a spate of stories about her reported membership in a Catholic group called People of Praise, linking the group to the dystopian novel The Handmaid’s Tale. What Barrett’s life and career have to do with the imagined misogynistic world of the novel was never clear — she’s a mother of seven who has ascended to the very top of her profession with the help of a supportive husband.
Barrett’s social conservatism has been another line of attack. Her critics have fastened on the fact that she signed a statement in 2006 declaring her opposition to abortion. It’s not news that Barrett is pro-life, nor should it be disqualifying unless progressives believe that anyone with a view counter to theirs on a hotly contested moral issue should be, on principle, excluded from the highest court.
It is not true, as has been widely reported, that Barrett said in that same statement that Roe v. Wade should be overturned (Barrett had nothing to do with an ad denouncing Roe that ran adjacent to the statement).
The group that organized the anti-abortion statement also opposes IVF, as commonly practiced, leading Democrats to conclude that Barrett does, too. Regardless, the Supreme Court obviously doesn’t police the nation’s fertility clinics.
Barrett has also been portrayed as a threat to Obamacare, given that the court will hear an anti-Obamacare lawsuit shortly after the election. But the merits of the suit are so weak, it conceivably could lose 9-0.
If it means anything, just last month Barrett participated with seven other judges in a moot court at William & Mary Law School on the Obamacare case. As the Los Angeles Times reports, “None of the judges ruled in favor of the administration and Republican states' request to strike down the law.”
It is alleged that Barrett would take a sledgehammer to precedent, but she wrote in a 2013 law review article that the Court’s traditional approach to stare decisis “promotes doctrinal stability while still accommodating pluralism on the Court.”
Her critics point to a 2016 TV interview where she commented about the vacancy created by the death of Antonin Scalia, alleging that she herself warned against appointments changing the ideological balance of the Court in an election year. To the contrary, the crux of her analysis was that the president has the power to nominate and the Senate the power to confirm or not.
Since progressives haven’t gotten traction with any substantive arguments against Barrett, they’ve been relying on dubious process arguments. Not only is it wrong, they charge, to confirm a justice so close to an election, it’s a public health danger to do so now when three Republican senators have tested positive. As a headline in the online magazine Slate put it, “The GOP will still seat Amy Coney Barrett because entrenching minority rule is more important than human life.”
This is laughable. First, it’s a long-standing norm that when the president and the Senate majority are of the same party, Supreme Court nominees get confirmed in an election year. Second, the Senate Judiciary has already been holding hybrid in-person and virtual hearings all year. There’s no reason it can’t do the same with Barrett next week.
At this rate, the Barrett confirmation is going to be the epic battle that wasn’t.
Rich Lowry is editor of National Review.