Divided sharply along partisan lines, the US Senate voted Monday evening to confirm Amy Coney Barrett in her nomination to the Supreme Court of the United States. Justice Clarence Thomas administered the oath of office a short time later, at the White House, making Justice Barrett the fifth woman to sit on the supreme bench.
By a 52-48 vote, in which only Republican Senators voted in favour of confirmation, the Senate filled the seat left vacant at the passing of Justice Ruth Bader Ginsburg on 18 September, after a lengthy and by all accounts heroic struggle of many years with cancer.
Justice Barrett’s seat is the third successfully filled by US President Donald Trump during his first term — more than any other President of the United States has filled in a single term of office since Richard Nixon confirmed four Justices between 1969 and 1972: Chief Justice Warren Burger (not Nixon’s first or even second choice), who replaced Chief Justice Earl Warren after a 74-3 confirmation vote in June of 1969; Associate Justice Harry Blackmun succeeded Associate Justice Abe Fortas in January of 1970; Associate Justices William Rehnquist and Lewis Powell were both sworn in on 7 January 1972.
Much has been made of Trump’s judicial appointments, especially this most recent one of Barrett, as a fulfilment of campaign promises to fill SCOTUS seats with jurists fitting a conservative profile characterised by an embrace of originalism in Constitutional interpretation and textualism in statutory construction.
Roughly and readily, originalism is the idea that judges ought to interpret the Constitution according to the meaning the words of the fundamental law had at the time of ratification (and often more precisely, according to the Framers’ understanding of what they were doing with the law). Textualism is the idea that judges ought to understand statutes according to the plain meaning of the words in which they are couched (on the assumption that those words are themselves the best and most reliable expression of legislators’ intent in making the law).
Historically, however, judges appointed to the Supreme Court have not frequently been doctrinaire in the application of the judicial philosophies presumed to animate them. In the exercise of their Constitutional duties, SCOTUS judges have not always — or even very often — been politically reliable. At the very least, guessing how a SCOTUS judge will vote in any given matter that comes before the Court is far more complicated than mere perusal of the political party to which his or her nominating President belonged or the brightness of the partisan lines along which the Justice’s confirmation was accomplished in the Senate.
The most egregious illustration of this is the case of Justice Blackmun, appointed by Richard Nixon and confirmed by a vote of 94-0 in the Senate. Blackmun would go on to give the Opinion of the Court in Roe v. Wade, which in 1973 made abortion legal throughout the Union.
More recently, Justice Neil Gorsuch — another Trump appointee to the Court — disappointed his conservative supporters with his Opinion in Bostock v. ClaytonCounty. In that 2020 decision, Gorsuch applied a kind of scrutiny not easily reconcilable with his own stated criteria of jurisprudence. He reached a conclusion — that certain provisions of the 1964 Civil Rights Act regarding discrimination based on sex apply equally to persons who express a gender identity disconsonant with their biological sex — similarly at odds with notions of construction and judicial restraint Justice Gorsuch had vocally espoused throughout his career.
In a hasty ceremony on the South Lawn of the White House on Monday evening, Justice Barrett made brief remarks: “A judge declares independence not only from Congress and the president, but also from the private beliefs that might otherwise move her,” she said. “My fellow Americans,” she continued, “even though we judges don’t face elections, we still work for you.”
Democrats promised painful retribution for the confirmation, which they saw as a naked exercise of raw power.
“The American people will never forget this blatant act of bad faith,” said Senator Charles Schumer from New York. “They will never forget your complete disregard for their voices, for the people standing in line right now voting their choice, not your choice,” the Senate Minority Leader added.
The US Constitution is unambiguous on the point: the President shall nominate, and with the advice and consent of the Senate appoint Justices — and the President of the United States holds his office, hence the duties of the office, for a term of four years, during which time he is oath-bound to discharge them. Similarly, the Senate of the United States is in session, and has the constitutional duty to advise and consent (or withhold consent) to the President’s nominations.
Senate Majority Leader Mitch McConnell nevertheless eschewed a more principled stance on the question, in favour of a line that tended to confirm at least that Republicans’ motivation was mere opportunity. “The reason we were able to do what we did in 2016, 2018 and 2020 is because we had the majority,” McConnell said. “No rules were broken whatsoever,” he added. “So, all of these outlandish claims are utterly absurd, and the louder they scream, the more inaccurate they are.”
In the short term, the political question is whether voters pleased with the appointment of Justice Barrett will reward President Trump and Republicans on election day — exactly one week away now — and whether that support will outweigh any groundswell of opposition or protest from voters hoping to help Democrats make good on their promise to deliver political retribution.