The confirmation of Amy Coney Barrett to the US Supreme Court remains on course as the Senate approaches this evening’s final vote. On Sunday, Senators voted 51-48 to advance Judge Barrett’s nomination with near uniform Republican support, justifying Mitch McConnell’s earlier claim on the final day of confirmation hearings that “we have the votes”.
However, no Democrats are expected to join these Republicans in voting for the confirmation of Judge Barrett, which marks a new low in the Senate’s increasingly partisan judicial appointment process. Even Brett Kavanaugh managed a modicum of Democrat support during his Senate hearings, when Senator Joe Manchin III helped confirm his nomination in 2018, but this would be the first time in recent memory that not one member of the minority party supports confirmation.
When the late Ruth Bader Ginsburg, whose seat Barrett is set to replace, was nominated for the Supreme Court in 1993, she was confirmed by a vote of 96 to 3. The three opposing Republican Senators critiqued Ginsburg’s judicial support for “the homosexual agenda” and abortion rights advocacy, about which she was quite open during her Senate hearing, but the remaining forty Republicans were unmoved: given the Senate’s constitutionally limited role of “advise and consent”, they believed her qualifications and experience were sufficient to advance her confirmation even if her judicial opinions departed from theirs.
Few today question whether Amy Coney Barrett, a law professor at Notre Dame and an appeals court judge in Chicago, is sufficiently qualified for the Supreme Court, but another supposedly nonpartisan objection has been advanced by Democrats. Often referred to as the Thurmond Rule, this principle has been invoked by Democrats to oppose Barrett’s confirmation on the grounds that Supreme Court appointments should not be made in the run-up to a presidential election.
This “rule” is actually an unwritten, non-binding principle derived from Republican Senator Strom Thurmond’s efforts to block Democratic President Lyndon B Johnson’s appointment of Abe Fortas as chief justice prior to the 1968 presidential election.
The rule runs contrary to the historical record: a total of 21 Supreme Court justices have been appointed in an election year, which includes six appointments made by lame duck presidents immediately prior to their elected successor taking office.
Nevertheless, in recent decades the principle of non-confirmation in an election year has been cited selectively by both major parties, and it has made a fool of both.
In 1992, Joe Biden, then chairman of the Judiciary Committee, argued against President George H W Bush appointing a Supreme Court justice prior to the election, saying precedent dictated that “a Supreme Court nomination must be put off until after the election campaign is over”. But in 2016, when Republicans referred back to this rule and blocked President Barack Obama’s appointment of Merrick Garland to the Supreme Court, Biden objected, saying that such a rule “doesn’t exist”. Now, Biden has again flipped the script and argued that Barrett’s nomination is “not constitutional” because it comes so close to an election, a claim widely rejected by legal scholars.
In a similar story, Mitch McConnell gave a speech on the Senate floor in the run-up to the 2008 US elections, in which he criticised the Democratic-majority Senate for its “obsession” with the Thurmond Rule, saying that “this rule that doesn’t exist is just an excuse for our colleagues to run out the clock on qualified nominees” appointed by the outgoing President George W Bush. But in 2016, McConnell found it politically expedient to invoke the Thurmond Rule – which Republicans rechristened the “Biden Rule” – to block Judge Garland’s nomination out of duty to “the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.” Needless to say, McConnell has not held fast during Judge Barrett’s confirmation proceedings to that “long-standing tradition” – which Democrats have themselves rechristened the “McConnell Rule” – and McConnell’s attempt to restrict the rule to occasions when “the presidency and the Senate majority are held by opposing parties” clearly falls afoul of his own 2008 comments.
Such a cross-party consensus on hypocrisy is a sure sign of how far the two parties’ views on Supreme Court appointments have diverged. As McConnell himself argued in a 1970 Kentucky Law Journal paper, the advisory role of the Senate dictates that it should only factor in ideological considerations during confirmation proceedings if the Supreme Court nominee has “extreme views”, such as support for Nazism or Communism, adding that such a scenario would be “highly unlikely” in “our politically centrist society”.
Just a few years later, however, this image of a stable centre was shattered by the Supreme Court’s landmark Roe v Wade decision, in which the court ruled that the Constitution’s “right of privacy … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy”. In one fell swoop, a country where abortion was illegal in most states suddenly saw numerous federal and state abortion laws struck down and replaced by the court’s own much-maligned and later discarded trimester framework, which forbade any state from regulating abortion during the first trimester of pregnancy and from outlawing it in the second trimester. Many pro-choice constitutional scholars condemned Roe v Wade as “bad constitutional law” and even Justice Ruth Bader Ginsburg argued that abortion rights should have been won through legislation, not judicial fiat, but tensions over the scope and jurisdiction of the Supreme Court have escalated ever since.
This politicisation of the judicial branch has increased the number of ideological viewpoints considered too “extreme” for the court and Amy Coney Barrett stands at the sharp end of this partisan gamesmanship. In 2017, when Judge Barrett stood before the Judiciary Committee after being nominated to the 7th Circuit Court of Appeals, Senators raised concerns that Barrett had described herself as an “orthodox Catholic” and probed her on whether this would unduly influence her decisions from the bench. During that exchange, Senator Dianne Feinstein argued that judges with an overly dogmatic faith were in danger of putting their religious beliefs before judicial process:
“Why is it that so many of us on this side have this very uncomfortable feeling that dogma and law are two different things, and I think whatever a religion is, it has its own dogma. The law is totally different. I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern.”
After Feinstein’s “anti-Catholic” comments came back to haunt her following Judge Barrett’s nomination, she and the other Democratic Senators avoided openly attacking Barrett’s Catholicism in election season. However, much of the media coverage surrounding Barrett’s nomination has still continued to echo the same concerns about her faith.
During the hearings, Republican Senator Josh Hawley lamented reading “one hit piece after another” on Barrett’s faith, citing Washington Post’s front-page story “Barrett long active with insular Christian group”, which raised concerns that, in the charismatic ecumenical Christian group People of Praise, Barrett “held the title of ‘handmaid,’ a leadership position for women in the community”. This term launched a series of similar exposés on People of Praise, whilst protestors began to congregate outside the White House in red “handmaids” outfits and Barrett’s ideological opponents tried to use the title to draw parallels between Judge Barrett’s Catholicism and the dystopian world of Margaret Atwood’s “The Handmaid’s Tale”, where women are treated as state property and their reproduction is tightly controlled.
During her recent Senate Judiciary Committee hearing, Judge Barrett said she had anticipated such “caricatures” when she accepted the nomination: “We knew that our lives would be combed over for any negative detail, we knew our faith would be caricatured, our family would be attacked, and so we had to decide whether those difficulties would be worth it”. Barrett, a Catholic with seven children and “pro-life” views, was unsurprisingly caricatured in light of the broader ideological concerns of many in the liberal press and the Democratic Party.
The liberal narrative soon fed into Barrett’s confirmation hearing, where she was asked repeated questions on Roe v Wade. Dianne Feinstein asked her if she shared “Justice [Antonin] Scalia’s view that Roe was wrongly decided”, but Barrett declined to comment on her mentor’s opinion. Other Senators pressed Barrett to explain why she had signed a number of pro-life statements, but Barrett explained that they were simply “statements of my personal beliefs” which she had signed as a member of a local parish and a Catholic university. And Senator Amy Klobuchar asked Barrett whether she considered Roe v Wade a super-precedent that could no longer be overruled, to which Barrett noted the obvious: “Roe is not a super-precedent because calls for its over-ruling have never ceased.”
Little can be read from such exchanges, since Judge Barrett committed herself to the “Ginsburg rule” for confirmation hearings: “no hints, no previews, no forecasts” on future rulings. But legal experts have still offered their view on whether Barrett will overturn Roe v Wade. Yale University Law professor Lara Bazelon, for one, is convinced this is the end of Roe. “Make no mistake: Judge Barrett’s confirmation will be the wrecking ball that finally smashes Roe v. Wade.” Princeton’s Keith E Whittington, however, believes that Barrett’s track record belies such certainty, citing her writings on stare decisis, the principle of judicial precedence. Here, Whittington notes that Barrett departs from many of her fellow originalists, who are typically dismissive of precedent in their emphasis on the original meaning of constitutional statements, in making the case that “a committed originalist can reasonably adopt a mainstream approach to stare decisis on constitutional issues” and “frequently defer to what might be flawed precedents”.
Barrett herself told an audience back in 2016 that she did not expect Roe v Wade to be completely overturned: “I don’t think the core case – Roe‘s core holding that, you know, women have a right to an abortion – I don’t think that would change,” she said. “But I think the question of whether people can get very late-term abortions, you know, how many restrictions can be put on clinics – I think that would change.”
But during her time on the appeals court in Chicago, Barrett did demonstrate a general willingness to uphold abortion restrictions. In 2018, she voted for the courts to reconsider the decision to strike down an Indiana law which required remains of aborted foetuses to be cremated or buried and which, in a separate provision, banned abortions based on the race, sex or disability of the unborn child. Then, in 2019, Barrett voted to rehear the case of an Indiana law struck down by the lower courts which required minors to notify their parents before having an abortion.
However, Judge Barret also joined an opinion that rejected a plea challenging a Chicago ban on anti-abortion protesters going within eight feet of people entering or leaving an abortion clinic. Republican Senator Joni Ernst cited the case during the confirmation hearings to argue that Judge Barrett will “handle disputes impartially” and respect judicial precedent.
Democratic vice presidential nominee Kamala Harris argued, though, that not only abortion was at stake with Judge Barrett’s appointment. Addressing the Senate via video feed, Harris said: “Every American must understand that with this nomination, equal justice under law is at stake. Our voting rights are at stake. Workers’ rights are at stake. Consumer rights are at stake. The right to a safe and legal abortion is at stake. And holding corporations accountable is at stake. And again there is so much more.”
To flesh out this argument, Democrats also turned to other cases from Barrett’s time on the 7th District Court of Appeals. This included a guns-rights case, in which Barrett argued in the minority opinion that Rickey Kanter, who had been convicted of mail fraud, should not automatically be disqualified from owning a gun, since he had not committed a violent crime. And in the same opinion, Barrett wrote that states had historically prioritised “individual” rights, such as free speech or gun rights, above more conditional “civic” rights, such as voting rights or jury service. Senator Dick Durbin said the conclusion that criminals could potentially retain the right to a firearm whilst still losing their right to vote was “hard to swallow”, but Barrett said it was merely a “descriptive statement” of the historical context and that she had not expressed a personal view on whether or not states should restrict voting rights of convicts.
The difficulty of such debates, of course, lies in the fact that Barrett’s jurisprudence has principally been critiqued by politicians and the press through a political lens. This mistake has launched two further prongs of attack: that Barrett will look to strike down the Affordable Care Act (ACA) and that she will assist President Donald Trump in the event of a contested election.
Despite Democrats emotionally pushing the first claim forward during the confirmation hearings using photographic displays of people reliant on the ACA, even Barrett’s fiercest critics recognised it was just a political game. Barrett did once write critically of Chief Justice John Roberts’ 2012 attempt to reinterpret ACA payments as a tax but, with the Supreme Court scheduled to hear arguments on the ACA in November, Democrats are now in need of someone just like Barrett who believes that “presumption is always in favour of severability,” meaning she will not try to use one flawed provision to unravel an entire statute.
And whilst the Democrat’s second claim may be superficially propped up by Trump’s comment that the election “will end up at the Supreme Court”, requests that Judge Barrett concede that her “impartiality might reasonably be questioned” and then simply recuse herself from a prospective election case highlights just how partisan the confirmation wars have become.
The reality is that it still remains unclear how a Justice Amy Coney Barrett would ultimately shape the Supreme Court. The oft-repeated claim that she would set up a “6-3 conservative majority” in the court, not only presumes Barrett’s conservatism on future decisions but it re-describes the past record of justices such as John Roberts and Neil Gorsuch as conservative, despite their roles propping up key liberal votes in recent years, such as Bostock. And even if it does transpire that Barrett becomes the tipping point at which the court begins to row back sharply on past progressive rulings, Biden’s recent announcement of a “bipartisan” commission into court reform provides Democrats outraged by Barrett’s appointment with the perfect opportunity to force Biden’s hand into expanding the court.
This page is available to subscribers. Click here to sign in or get access.