Another Republican Supreme Court Confirmation

How Will it Impact Next Tuesday’s Election?

Gastbeitrag von Taylor Tensen Cooperman

What is left of the 2020 presidential election? Not much, besides the actual voting day, and even that has passed for the approximately 58 million Americans who have already voted. The final presidential debate was last Thursday. It was calmer than the shouting match that took place during the first debate and it was mostly recognized as having no significant impact on voters, especially since very few remained undecided. Biden still leads in the polls and, much like in 2016, there is even speculation that traditionally Republican states, such as Georgia and Texas, may go blue this year. Democrats have a real shot at winning a majority in the Senate.

When it comes to American politics, what has held a lot of attention lately, perhaps even more than the Biden and Trump campaigns themselves, is the Senate Judiciary Committee hearings regarding Amy Coney Barrett’s nomination to the Supreme Court. The death of Ruth Bader Ginsberg, a former Supreme Court justice, on the 18th of September, and President Trump’s subsequent nomination of Judge Barrett to fill the vacancy, may impact the results of the November election.

First, some backstory. On February 13, 2016, justice Antonin Scalia died leaving a vacancy on the supreme court. At the time, Republican legislators refused to allow President Obama to appoint a new judge, which is standard procedure — when a supreme court justice dies the sitting president appoints a new one. At the time Republicans said it was too close to the election (which was 9 months away in November of that year) to appoint a new justice. Because Republicans had control of the Senate there was very little that could be done to prevent Republican legislators from abusing their power by preventing a new justice from being appointed under a Democratic president. Since then, Republican lawmakers have repeatedly said that if a vacancy on the supreme court were to come up in the last year of Trump’s presidency and the primary elections had begun, then they would not confirm a judge. 

This past September, when justice Ginsburg died, the primary elections had not only begun, but had also ended, and the general election was less than two months away. Senate Republicans, with astonishing hypocrisy, immediately reversed their position and rushed to go ahead with the confirmation hearings for Amy Coney Barrett, Trump’s third supreme court nominee of his presidency. 

Democrats were outraged and many Americans opposed the hypocritical and, in some people’s opinion, undemocratic move by Republicans to rush through a nominee weeks before a presidential election. Trump was already trailing in the polls, but many thought that this brazen disregard for fairness and consistency of rules by the Republican party would  further diminish Trump’s chances of winning re-election. As well, hugely important laws such as marriage equality and abortion rights, issues which have support among the majority of Americans, are also at stake with Barrett on the court. As well, the Affordable Care Act (ACA), also known as Obamacare, which is one of the most important voting issues for many Americans, is put into grave danger. Republicans have been trying for years to repeal President Obama’s landmark policy and if a case about the constitutionality of the ACA comes before the supreme court it is likely to be struck down now that the court has a conservative majority. With such a public display of bad faith politics and by appointing a far-right judge to the Supreme Court, the Republicans seem to be hurting their chances of success in the 2020 election.

However, Trump’s pick, judge Barrett, is perfectly suited to quelling Americans’ fears about the impacts of a six to three conservative majority on the court. Barrett comes off as intelligent, sensible, and kind and she clearly tries to present herself as anything but a far-right activist or radically conservative — and she does this quite convincingly. By the end of the confirmation hearings, a majority of Americans supported appointing judge Barrett to the highest court in the country. On October 20th, a Gallup poll revealed that 51% of Americans wanted Barrett to be confirmed to fill the vacancy and 46% were opposed to Barrett’s confirmation. 

Democratic senators knew they had no power to stop the confirmation of Amy Coney Barrett and used the confirmation hearings to try to communicate to the American people that this process was unfair and hypocritical. They also used the opportunity to attempt to influence judge Barrett on policy issues that the cases likely to come before the supreme court would have major impacts on. Some told personal stories about their constituents who rely on the ACA for healthcare coverage. Senator Whitehouse (D-Rhode Island) took the opportunity to talk about the dark money involved in the US court system, where millions are spent on activist court cases defending the special interests of corporations and conservative organizations. Cory Booker (D-New Jersey) very movingly spoke to judge Barrett about systemic racism and how the American justice system has a long and ugly history of perpetuating the oppression of black and minority Americans. 

After the confirmation hearings ended, Democrats continued to fight in symbolic ways, as they don’t have the votes to actually oppose the confirmation. On Monday evening judge Barrett was confirmed with a vote of 52 to 48, almost entirely along party lines. Certainly, with an eye on next week’s election, they continue to remind the public that what has happened is not normal nor fair. Over the weekend, Chuck Schumer, a Democratic senator from New York said that he wanted “to be very clear with the American people about what’s going on here,” also saying “the Republican senate majority, America, is breaking faith with you…don’t forget it America, don’t forget what’s happening here.” It’s clear that when Democrats most urgently don’t want Americans to forget this is when they cast their ballots.

It is worth considering what the move by Republicans to rush the nomination process really means. On the one hand, it could be the case that they believe cementing a significant conservative majority on the court is more important than retaining the White House and Senate, especially since judges are appointed for a lifetime, while presidents and senators are only in office for a few years. On the other hand, the Republican Party may have recognized their dim chances of winning in November and decided that they had little to lose (and a lot to gain) by confirming Barrett. In a speech on the Senate floor on Sunday, Mitch McConnell, the Senate Majority Leader, highlighted the success and meaning of this nomination for conservatives by noting that in the coming years, Democrats may well be able to undo the policies put into place during Trump’s presidency, but the lifetime appointment of Amy Cony Barrett to the Supreme Court cannot be undone.