What had looked like a clean fight, with a capable and easy-to-confirm justice, is now something else entirely.
What had looked like a clean fight, with a capable and easy-to-confirm justice, is now something else entirely.
D onald Trump and Republicans have made Amy Coney Barrett’s nomination to the Supreme Court slightly harder and more tedious than it has to be.
And it didn’t have to be this way.
Opposition to Barrett’s nomination to the Supreme Court has been disorganized and flagging almost from the moment that a vacancy presented itself.
First, the internal opposition from Republicans collapsed. While some conservatives circulated strange “deals” for delaying the nomination, by the Monday after Ruth Bader Ginsburg’s death, Republicans in the Senate had accepted the political logic of moving forward with a nomination to the high court. Yes, it would mean some embarrassing reversals for some, such as Lindsey Graham, but the historical arguments that a Senate and president of the same party had almost always confirmed a nominee to the Supreme Court during an election-year vacancy persuaded any doubters. So too did the political argument that Republican senators run on the issue of filling vacancies to the Supreme Court with conservative judges. Failure to do so would be more costly than deference to some non-existent norm against doing it in an election year.
Next, Democratic opposition flagged. Unable to stop her nomination if Republicans remained relatively united, they resorted to threats to pack the Court or attempt to pack the Senate by adding new states. “Nothing is off the table,” said New York senator and Senator minority leader Chuck Schumer. But Dick Durbin of Illinois began shooting down rumors that Democrats could unite on a plan of altering the working of constitutional offices after the November election. Joe Biden had campaigned against court-packing during the Democratic primary. A fight like this would swallow an incoming Biden administration’s energies and could lead to a backlash election in 2022 and 2024.
Elected Democrats began, quietly, to talk down their own ranking member on the Judiciary Committee, Senator Dianne Feinstein. They put the word out that they did not think her attack on Barrett’s religion in an earlier hearing — Feinstein said that “the dogma lives loudly within you, and that’s a concern” — had helped them. Instead, they would focus on the Trump administration’s support of a long-shot challenge to Obamacare.
But even in an election year, Democrats can’t quite restrain the powerful culture-war antipathies of their aligned media, and of progressive intellectuals. Media outlets promptly began embarrassing themselves trying to dig up dirt on Barrett’s religiosity, falsely accusing a religious group to which she belongs of inspiring The Handmaid’s Tale. Or alleging that Barrett once lived in a quasi-dorm with strange courtship rituals. This led her to meet her husband, with whom she has had a long and fruitful marriage. Finally, the most influential progressive intellectual in the country, when contemplating Barrett’s adopted Haitian children, thought it clever to mention that colonialists stole black children in order to vindicate the racial superiority of whites.
One could feel the resignation about Barrett’s nomination settling over Democrats and the broader Left. Opposition was not united around a single storyline. Plans for exacting vengeance were falling apart.
But then in the presidential debate, Chris Wallace asked a simple question on the subject of the 2020 election. He asked Donald Trump, “And are you counting on the Supreme Court, including a Justice Barrett, to settle any dispute?”
Trump pushed Barrett right into the trap. “Yeah,” he replied, “I think I’m counting on them to look at the ballots, definitely. I hope we don’t need them, in terms of the election itself. But for the ballots, I think so, because what’s happening is incredible.”
This puts Barrett in a very awkward position. Barrett will ably try to parry away any questions on this, but the fact is that Democrats are going to put her on the record about whether she should recuse herself from any pending 2020 election-year cases. If her answers make it sound like she is against recusal, she will be portrayed as corrupt. If her answers make it sound like she is pre-committing to recusal, it will shake Republicans up.
Worse, of course, the large party at the White House, thrown to celebrate her nomination, is likely to have played a role in the spread of coronavirus to senior members of the White House staff, including the president and some of his closest aides. The Trump team’s failure to practice adequate social distancing does not fall on her. But it allows Democrats to portray her nomination as in some way poisoned by and reflective of Trump’s irresponsibility.
None of this had to happen. But what had looked like a clean fight, with a capable and easy-to-confirm justice, is now something else entirely.