by Shri Thakur ’22
Published Oct. 14th, 2020
On September 26th, 2020, President Donald Trump nominated appellate court judge Amy Coney Barrett of the 7th Circuit to the Supreme Court. This seat was left vacant by the death of Ruth Bader Ginsburg eight days earlier.
Barrett is a mother of seven from Indiana and a conservative favorite known for her self-described originalist view of jurisprudence, and has emerged as a controversial nominee for the court. The Supreme Court has already leaned slightly to the right after the confirmations of Justices Neil Gorsuch and Brett Kavanaugh. Barrett’s nomination sets up an ugly confirmation battle that, if successful, could cement a clear conservative majority on the court for generations to come.
Among liberal legal circles, Coney Barrett has come under fire for her personal beliefs that throw into question her ability to impartially serve on the Supreme Court. During an earlier confirmation hearing for the appellate court, for which she was confirmed 55-45, Senate Democrats such as Diane Feinstein (CA) criticized Barrett for her Orthodox Catholic beliefs, telling her that “the dogma lives strongly within you.”
Democrats have also criticized Barrett for what they believe is the danger she poses to abortion rights in the United States. While Barrett has not publicly commented on whether or not she would vote to overturn the landmark abortion case Roe v. Wade, which established a constitutional right to an abortion, Barrett has taken the position that life begins at fertilization, and once signed on to a newspaper article that called the case, which was decided in 1973, “barbaric.”
Additionally, Justice Barrett’s originalist philosophy, which implies that she would rule on constitutionality based on what is explicitly stated in the constitution, is a significant contrast from Ruth Bader Ginsburg’s judicial activism. Ginsburg often ruled based on interpretations of the constitution that are often not widely accepted, such as in the case Obergefell v. Hodges, which struck down bans on gay marriage, as well as in Bostock v. Clayton County, which ruled that discrimination based on “gender identity” was illegal under the Civil Rights Act of 1964.
As political analyst Josh Gernstein of Politico put it, “Democrats fear the 48-year-old Barrett will cement a conservative majority on the high court for a generation, rolling back abortion rights, ending Obamacare, and limiting the federal government’s power to fight climate change.”
According to CNN, sources familiar with the nomination process say that Barrett and Cuban-American appellate court judge Barbara Lagoa were the two finalists for the nomination. Trump, however, had wanted to select Barrett for a long time and went with his original pick. Barrett had also been the reported pick of Senate Majority Leader Mitch McConnell, as well as other key Senate Republicans, like Missouri Senator Josh Hawley.
However, since the death of Ginsburg, Democrats like former Vice President Joe Biden have argued that any nomination, regardless of the credentials of the nominee, would be inappropriate given its proximity to the 2020 presidential election. Biden and the DNC cite the Republicans’ refusal to hold confirmation hearings for Justice Merrick Garland during a similar situation in 2016 to back up their claim.
Democrats have threatened to consider court-packing, the act of adding additional supreme court justices, as retaliation should Barrett be confirmed. Biden refused to answer whether or not that was his position at the September 29th debate. The President justified his nomination at the presidential debate with Biden, arguing that “the powers of the presidency are for four years, not three.”
No Democratic Senators have committed to considering the nomination of Justice Barrett. However, it is unlikely that this will impede her confirmation, as all but two Republicans, Susan Collins of Maine and Lisa Murkowski of Alaska, have committed to a floor vote before the November 3rd presidential election. It is unclear how the recent outbreak of COVID-19 among several high-profile politicians, such as President Trump himself, will affect this timeline, although Majority Leader McConnell has vowed that nothing will change.
With public opinion divided but slightly in favor of confirmation, 37%-30%, according to a new poll by Just the News, Barrett’s nomination is sure to create a brutal political battle just weeks out from the November presidential election. With a close race expected and a nation bitterly divided over culture and politics, the impact that Barrett, who would likely serve for decades to come, could have is profound.