US President Donald J. Trump on Saturday nominated Judge Amy Coney Barrett to the US Supreme Court, the first step in filling the vacancy created on the high court bench by the death of Justice Ruth Bader Ginsberg on September 18, after a long battle with cancer.
Judge Barrett is a highly distinguished jurist who taught constitutional law and statutory interpretation at Notre Dame University, where she held the Diane and M.O. Miller Chair. She clerked for Judge Laurence Silberman on the US Court of Appeals for the DC Circuit and for Justice Antonin Scalia at the Supreme Court. She worked in private practice at the law firms of, Miller, Cassidy, Larroca & Lewin and Baker Botts.
The 48-year-old Judge Barrett, a mother of seven children – two adopted – currently serves on the US Court of Appeals for the 7th Circuit, which comprehends the midwestern US states of Illinois, Wisconsin, and Indiana. President Trump appointed her to the 7th Circuit in 2017, and considered her for the Supreme Court seat that eventually went to Justice Brett Kavanaugh.
In Remarks at the White House Saturday, Trump described the Judge Barrett as “a woman of unparalleled achievement, towering intellect, sterling credentials and unyielding loyalty to the Constitution.” Trump urged the US Senate to give her a fair and speedy hearing. In the US system, the President nominates Supreme Court Justices and the Senate confirms the nominations.
Senate majority leader Mitch McConnell said earlier this week that the Senate would hold hearings and vote before the year is out, but did not commit to doing so before the November 3rd presidential election.
The Democratic presidential nominee, former Vice-President Joe Biden, said the Senate should wait until after the election to hold a vote. He cited what he described as Judge Barrett’s “written record” of opposition to the Affordable Care Act – the sweeping health care reform law passed under US President Barack Obama. The Affordable Care Act survived a legal test that reached the Supreme Court in 2012, which turned on Congress’s power to penalise non-compliance with the law’s requirement of most US citizens to obtain health insurance coverage. In a 5-4 decision in which Chief Justice John Roberts gave the opinion of the Court, the Court upheld the provision on the grounds the penalty was a tax penalty, which fell under Congress’s taxation power.
Barrett wrote a law review article in early 2017, in which she reviewed a book by Randy E. Barnett, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People. Her journal article contained a widely quoted line: “In NFIB v. Sebelius, the inspiration for Barnett’s book, Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute.” In the passage from which the line is pulled, Barrett was rehearsing the author’s argument. She can expect to be grilled on that and other matters in any Senate hearings.
During her 2017 confirmation hearing for the seat on the 7th Circuit, Judge Barrett — a practicing Catholic — faced scrutiny for her religious convictions. In a line of questioning criticised from across the spectrum of political opinion, California Senator Dianne Feinstein told Barrett: “The dogma lives loudly within you—and that’s of concern.” The statement became a badge of honour, and now adorns coffee mugs, t-shirts, and ballcaps.
The stage is now set for a major battle, both in the Senate and in public opinion.
Senator Richard Blumenthal of Connecticut, who sits on the Senate Judiciary Committee, tweeted his intention to “refuse to legitimize this broken, weaponized process by meeting w/any nominee put forward before the inauguration.”
Senator Dick Durbin of Illinois, who in 2017 had asked Barrett point-blank about her religious convictions — “Do you consider yourself an orthodox Catholic?” he asked, to which Barrett replied that she considers herself a faithful Catholic — told CNN on Saturday that he feels there is too little time to vet the candidate properly. “This Supreme Court nominee may serve on the court for 30 years,” Durbin said. “It is nothing short of outrageous that they want to approve her in fewer than 30 days.”
On Saturday, there were 38 days to the presidential election and 99 days until the end of the legislative session. In 1975, the Senate took just 19 days to confirm Justice Steven Breyer. The late Justice Ginsberg’s process took 42 days, in 1993. The confirmation process has taken roughly 70 days since 1975.
Senate Republicans, however, refused to vote or even hold hearings for President Obama’s nominee to fill the late Justice Scalia’s seat when Scalia died in 2016, with some Republicans citing an unwritten rule about Presidents not making nominations during an election year. Among them was Majority Leader Mitch McConnell, who in February of 2016 said, “[T]his vacancy should not be filled until we have a new president,” because, “[t]he American people should have a voice in the selection of their next Supreme Court justice.”
McConnell and other Republicans have come in for vocal criticism over their change in position from 2016.
In 2016, Senate Democrats took the view that the Senate should hold hearings and give Judge Garland a vote. Senator Feinstein said in March of 2016, “Today, President Obama fulfilled his constitutional duty by nominating Judge Merrick Garland to the Supreme Court. Now it’s time for the Senate to do its own job and fully and fairly consider this nominee.” In a letter last week to the Senate Judiciary Committee chairman Lindsey Graham, which Senator Durbin and nine other Democrats on the Committee joined, Feinstein wrote: “There cannot be one set of rules for a Republican president and one set for a Democratic president, and considering a nominee before the next inauguration would be wholly inappropriate.”
The US Constitution, however, gives the the President the duty to nominate during his 4-year term, and gives the Senate the duty to advise and consent to nominations.
In theory, Supreme Court nominations are not political affairs. In practice, the nomination and confirmation process has become increasingly politicised in recent years, especially in the 21st century. The nomination of Judge Barrett is not likely to see attenuation of that trend.