Amy Coney Barrett is brilliant; her ascent to the Supreme Court is not
This one is easy: Amy Coney Barrett is brilliant, qualified for the Supreme Court, the most engaging selection since Sandra Day O’Connor.
She’s also the most right-wing nominee since Robert Bork was rejected in 1987. Also — through no fault of her own — she is ascending because Republicans cheated. That will be a permanent stain.
The process is rigged so that she will be voted on and approved by the Senate shortly before the election, COVID-19 fears notwithstanding. Senate Democrats need to carefully build a persuasive case why this is objectionable and focus on the consequences. They should avoid personal shots.
The argument will be advanced by Barrett, currently on the 7th Circuit Court of Appeals, and her supporters that judges don’t bring their personal views to the High Court, they just call balls and strikes. Sure. Ruth Bader Ginsburg brought her deeply held personal views to the court, as will Judge Barrett; they happen to be diametrically different.
The right-wing Federalist Society is not popping the champagne corks over getting an umpire.
To be sure, a few nominees have turned out differently than when appointed. William Brennan was a leading liberal for decades, not exactly what President Eisenhower expected. David Souter was more moderate than George H.W. Bush anticipated, though this was no surprise to his New Hampshire colleagues.
Other than an occasional stray vote, these are the exceptions.
To those liberal colleagues on the faculty at Notre Dame or those who knew her when she was a clerk to Supreme Court Justice Antonin Scalia or from judicial forums who say ‘We disagree with her but she’s a great choice,’ — I’d say that may make for interesting anecdotes in the classroom or salons: It won’t assuage those who will be hurt by her decisions.
Under a court with Barrett in the majority, lower and middle income Americans probably will have less access to government-assisted health care; voting rights — especially for minorities — are more likely to be contracted than expanded; union organizing will be more difficult, and immigrant and criminal defendants will have fewer protections.
At her confirmation hearings, her responses, like those of her predecessors, will be predictable: She will talk about her respect for precedent when asked about overturning the Roe v Wade abortion decision.
She will deny that her criticism of the chief justice’s decision upholding the Affordable Care Act suggests she will side against it; a week after the election, the court will hear the Trump administration’s initiative to throw out the entire act, including the protection for people with pre-existing conditions.
Supporters say Roe v Wade or the ACA won’t be overthrown. Perhaps not explicitly, but Barrett and like-minded justices will find work-arounds to gut both measures.
Count on it.
Democrats shouldn’t refuse to meet with her — that was the tactic used by most Republicans four years ago when they refused for nine and half months to meet with Merrick Garland who was nominated by Barack Obama. They should not boycott her Judiciary Committee hearing. They should focus on the threat to the ACA, overturning Roe v Wade — not abortion in general — and on the hypocrisy of Republicans who four years ago piously proclaimed it was inappropriate to confirm a Supreme Court Justice in a presidential election year.
They should avoid foolish questions about Barrett’s Catholicism, such as Sen. Dianne Feinstein (D-Calif.) raised during the appeals court confirmation three years ago. It’s hard to sublimate Senators’ egos but it’d be good to bench Feinstein and Hawaii Sen. Mazie Hirono.
Senators like Amy Klobuchar (D-Minn.), Sheldon Whitehouse (D-R.I.) and Cory Booker (D-N.Y.) can take the lead; the Biden campaign has to decide the political calculations of Kamala Harris’s role; she’s a tough interrogator.
Trump has said he wants Barrett on the court to help decide any dispute over the presidential election. That poses a clear conflict. She should be pressured to promise a recusal in any such case.
If the election is legitimately close — I strongly doubt that — it could land in the lap of the Supreme Court. Without a Barrett recusal, count on her as well as Trump appointees Brett Kavanaugh and Neil Gorsuch to, paraphrasing former Texas football coach Darrell Royal, dance with the guy who brung em — Trump.
If Democrats take the White House and Senate, there really is a compelling case to increase the size of the Court. To go back to a baseball metaphor, it’s violating the norms of the game for a pitcher to purposefully bean (or hit with a pitch) the other team’s star player. It’s then incumbent to strike back. No one did that with more vengeance than the great Bob Gibson, who passed away last week.
The Republicans will get Amy Barrett on the High Court. They are cheating to do it and should pay a price.
Al Hunt is the former executive editor of Bloomberg News. He previously served as reporter, bureau chief and Washington editor for the Wall Street Journal. For almost a quarter century he wrote a column on politics for The Wall Street Journal, then the International New York Times and Bloomberg View. He hosts 2020 Politics War Room with James Carville. Follow him on Twitter @AlHuntDC.