Despite some late speculation that he might pick Barbara Lagoa, or a number of other Federalist Society-approved judges to fill the Supreme Court seat of the late Ruth Bader Ginsburg, President Trump went with the obvious choice — nominating Amy Coney Barrett during a Rose Garden event on Saturday.
The 48-year-old judge, who serves on the 7th U.S. Circuit Court of Appeals in Chicago, has been at the top of Trump’s Supreme Court shortlist for some time. Many social conservatives were disappointed in 2018 when he nominated Brett Kavanaugh rather than Barrett to fill Antonin Scalia’s seat.
Read former U.S. attorney Barbara McQuade’s review of Barrett’s judicial views, Cristian Farias’s conclusion about how Trump and conservatives arrived at this moment, and Sarah Jones’s explanation of how Barrett’s pending confirmation fulfills a long right-wing anti-feminist crusade. In addition, Ed Kilgore has explored Barrett’s charismatic Catholicism, and Eric Levitz has offered some advice on Democrats should approach the confirmation battle.
Below is the latest news, commentary, and analysis regarding this developing story as Trump and the Senate GOP rush to replace RBG before Election Day, with updates appearing in reverse chronological order.
When replacement becomes co-opting and erasure
Slate’s Dahlia Lithwick condemns Saturday’s attempts by Trump and the GOP to suggest nominating Barrett was some kind of even swap for, or tribute to, Ruth Bader Ginsburg:
Amid all of this grief [over RBG’s death,] we are now subject to a turn to parody that is also cruelty. The White House rollout of Amy Coney Barrett as candidate for the seat has gone beyond erasing Justice Ginsburg’s legacy—they are stealing the trappings of that legacy and stripping it for parts. On Trump’s orders, CNN reported, the Rose Garden was deliberately done up to mirror precisely Bill Clinton’s announcement of Ginsburg’s nomination. There are now grotesque GOP T-shirts that imply that 60 years of unprecedented and brilliant legal advocacy by Ginsburg could simply be re-appropriated by someone else because she too is a woman in possession of three names. This comedic implication—that Judge Barrett is the natural inheritor of Ginsburg’s legacy—is depraved. As Donald Trump explained when he introduced her, Barrett’s work to dismantle Ginsburg’s legacy in abortion, health care, discrimination, and gun rights is to be construed as pro-women simply because a woman will be doing it. Even Judge Barrett’s own remarks relied on coopting Ginsburg’s reputation and legacy, as if the fact that one’s husband is the better cook is the only hallmark of female empowerment. Lack of originality is the hallmark of this administration: Like the Trump’s inauguration cake or Melania’s stolen convention speech, they routinely steal good things and then brazenly and cheaply repurpose them for opposing ends. It is infuriating not only because it is rank, immature trolling—it is infuriating because it is also a form of contempt. …
I’ve been struggling to decide how to feel about Judge Barrett. I am reliably told that she is intelligent, dignified, and kind. I believe it. So, of course, was Merrick Garland. But her kindness and love for her family and colleagues doesn’t change the fact that her legal and extra-legal record evince a systematic hostility to workers’ rights, reproductive freedom, access to healthcare, gun safety, and toward the rights of prisoners and asylum seekers and elderly workers and racial minorities whose erasure Ginsburg could not bear. But whatever else is true, I think it must be excruciating to stand next to the most contemptible president in history, knowing you wouldn’t leave your teenage daughters alone in a room with him, pretending he is worthy of the office he holds. It must be brutal to have two cherished children adopted from a country that same president described as a shithole, and still pretend that he is fit to serve. It must be mortifying to be described as a constitutional powerhouse; a subtle and independent legal thinker, when you have been selected by a president and Senate that have already told you precisely how you must rule in the cases you have yet to hear. It must be demeaning to have one’s own rich and complete legal and jurisprudential worldview, developed over decades in opposition to the worldview of Justice Ginsburg, tidily recast as Notorious 2.0, just so the GOP can, once again, troll the libs. None of this sounds anything like feminism to me; not regular feminism, and not “skim milk” feminism either. It sounds like subordination, and diminution, which are the things men do to erase women; the things Justice Ginsburg devoted her life to battling.
Why conservative court-packers want to defeat regulation and campaign finance reform far more than Roe
The New Yorker’s Jeffrey Toobin explains why he thinks that Roe v. Wade is the smaller elephant in the room amid the Barrett debate:
[I]t’s worth remembering the real priorities of Trump and Mitch McConnell, the Senate Majority Leader, in this nomination. They’re happy to accommodate the anti-abortion base of the Republican Party, but an animating passion of McConnell’s career has been the deregulation of political campaigns. The Supreme Court’s Citizens United decision brought the issue to wide public attention, but McConnell has been crusading about it for decades. He wants the money spigot kept open, so that he can protect his Senate majority and the causes for which it stands. This, too, is why the Federalist Society has been so lavishly funded over the years, and why it has expanded from a mere campus organization into a national behemoth for lawyers and students. Under Republican Presidents, Federalist Society events have come to operate as auditions for judicial appointments. The corporate interests funding the growth of the Federalist Society probably weren’t especially interested in abortion, but they were almost certainly committed to crippling the regulatory state.
Barrett is a product of this movement, and not just because she clerked for Scalia. Her writings and early rulings reflect it. Her financial-disclosure form shows that, in recent years, she has received about seven thousand dollars in honoraria from the Federalist Society and went on ten trips funded by it. But it’s not as if Barrett was bought; she was already sold. The judge has described herself as a “textualist” and an “originalist”—the same words of legal jargon that were associated with Scalia. (She believes in relying on the specific meaning of the words in statutes, not on legislators’ intent. She interprets the Constitution according to her belief in what the words meant when the document was ratified, not what the words mean now.) But these words are abstractions. In the real world, they operate as an agenda to crush labor unions, curtail environmental regulation, constrain the voting rights of minorities, limit government support for health care, and free the wealthy to buy political influence.
Democrats’ options for obstruction
Here’s how SCOTUSblog’s Katie Barlow summarized the various tools Senate Democrats have to delay — but not prevent — Barrett’s confirmation:
Regardless of how McConnell tries to choreograph the next five weeks, he is likely to face unprecedented obstruction from Democrats. In the coming weeks, Democrats will try to leverage Senate rules and procedure to slow things down. Democrats circulated a memo this week outlining 19 potential delay tactics, according to a report from The Daily Poster. Democrats can invoke the quorum call requirement for all Senate business. That would require Senators to stay in Washington to maintain a quorum. Republicans are defending 23 seats this election cycle — compared to just 12 for Democrats — and many of those embattled senators would prefer to be home campaigning in the month before the election. The Senate also relies heavily on unanimous consent agreements to conduct routine business like whether to adjourn or recess. Democrats can withdraw unanimous consent and force roll-call votes on routine business, which could also temper the pace.
Politico’s Andrew Desidero adds that “interviews with more than a dozen Democratic senators revealed broad support for disrupting the Supreme Court confirmation process, even if the strategy yields some collateral damage”:
Individual senators have been known to cause a procedural fracas here and there on the Senate floor — but if Schumer develops a cohesive strategy and has the support of the entire Senate Democratic Caucus, it could quickly become one of the most disruptive series of delay tactics in recent memory.
Even Sen. Joe Manchin (D-W.Va.), who voted to confirmed Supreme Court Justice Brett Kavanaugh and is considered the most conservative Senate Democrat, is on board with Schumer’s initial effort. He was quick to justify Schumer’s use of the two-hour rule, which halted committee business last Tuesday. …
Other Democrats said the disrupt-and-obstruct strategy could prove useful as the party seeks to further highlight the Senate’s inaction on pandemic relief, which has stalled for weeks after negotiations broke down.
Another argument for default resistance:
How the overreach backfires
Trump and Barrett super-fan Lindsey Graham may be the GOP canary in the Court-packing coal mine:
Why Trump’s SCOTUS might not want to help him un-lose the election
American history professor Seth Cotlar explains in a Twitter thread why future-looking Supreme Court conservatives may opt against backing Trump amid a contested election outcome:
I think the SCOTUS/2020 election scenario that’s far more likely than them handing Trump the election on sketchy grounds, is one where Trump tries to get them to do that but they slap it down, thus buying themselves a ton of legitimacy, allowing them to stave off packing and also clearing the ground for them to do what the GOP long game has long hoped the federal judiciary will do….to strike down as unconstitutional any progressive legislation, no matter how big of a majority it passes by and is supported by. …
Trump and his most rabid fans seem to be fantasizing about America becoming a failed state, but the conservatives on the SCOTUS are smart enough to recognize that this would not serve the interests of the constituency they’re most concerned for. I think Roberts is far more interested in protecting the legitimacy of the SCOTUS so it can play its allotted, anti-democratic role in a future American politics where the GOP, until it can win more votes from non-whites, is a permanent minority party. …
And while I dislike Mitch McConnell as much as 87% of my fellow Americans, he’s no dummy. There’s a reason why he’s been minting new right wing judges in lieu of doing anything else. He’s doing it like it’s going out of style, cause he knows GOP legislators are going out of style. And holy cow, can you imagine the headlines: CONSERVATIVE SCOTUS REJECTS TRUMP’S EFFORTS TO STEAL THE ELECTION. They could plausibly believe that this would buy them enough political capital to bat down anything remotely ambitious that a Biden administration might try to do. Trump has now bought the GOP establishment everything they could have ever wanted in the form of a stacked federal judiciary. Why on earth should we think they’d risk undermining the legitimacy of the state just to give someone they know is a buffoon another 4 years?
A forgone judiciary conclusion
Intelligencer contributor Cristian Farias explains the forces that are delivering Barrett to the Court:
Like other nominees to the federal bench, Trump didn’t choose Barrett; she was chosen for him. Under the Constitution, he may be the appointing authority, the person whose signature adorns the 200-plus judicial commissions he has signed since becoming president. But in the end Trump is only a vessel, an instrument through which the Federalist Society, conservative legal activists, and a pliant Senate have made the judiciary a little bit more Trumpian — the average Trump judge is more conservative, if not ideological, than the median Republican appointee from generations past. A Trump judge bound by Supreme Court precedent can lament abortion as “a moral tragedy” and get away with it. In striking down COVID-19 restrictions, another may resurrect a precedent long ago dead and buried. And yet another may come to Trump’s rescue at every turn.
It is all this winning on judges — by all accounts Trump’s chief legislative achievement — that keeps Republicans beholden to him. The prospect of a Justice Amy Coney Barrett makes even ardent Never Trumpers look the other way. Mitt Romney falls in line. No failure of leadership or moral character — on COVID-19, the scourge of racism, the abuse of the levers of power — is too great for the promise of a federal judiciary remade in Trump’s image. The Senate, with McConnell at the helm, may not move to protect the election, pass new coronavirus relief, extend the deadline for the Census, or bolster the capacity of the U.S. Postal Service. But it’ll move heaven and Earth to ram Barrett through, even as voters are already charting the course of the next four years.
Read Farias’s whole take here.
The honor of a historic asterisk
Why Democrats should make Barrett’s confirmation hearings an anti-GOP infomercial
Intelligencer’s Eric Levitz argues that Barrett’s nomination is an opportunity for Democrats to leverage the now-endangered ACA against Trump and Republicans in the run up to Election Day (which so far appears to be what they are already trying to do):
The conservative legal challenges to Obamacare don’t just constitute an attempt to strip millions of potentially life-saving insurance subsidies, or change health-care policy in a toxically unpopular manner; it also represents an assault on democracy itself. The American people’s democratically elected representatives entertained the question of whether this law should exist twice, first in 2009 and then in 2017. The verdict is clear. The unpopularity of the conservative alternative is unmistakable. Nevertheless, the right has refused to take the electorate’s “no” for an answer, and is now seeking to use its influence over the judiciary to override the will of the people. In this way, the Obamacare case conveniently weds the threat that Trump poses to the material interests of working people with the threat he poses to democracy itself.
Democrats may have no real chance of blocking Barrett’s confirmation. But the Senate’s hearings will provide the party an opportunity to clarify the stakes of the impending vote that they can still win.
Read what else Eric had to say here.
More extreme than Scalia
Former U.S. attorney and frequent Intelligencer contributor Barbara McQuade notes that “Barrett learned at [Justice Antonin] Scalia’s elbow, and is ready to take his jurisprudence one step further”:
If Barrett is confirmed, then the Court will include five justices, a majority of the Court, who will have been appointed by presidents who did not win the popular vote. In addition to Barrett, Trump appointed Neil Gorsuch and Brett Kavanaugh. George W. Bush, who lost the popular vote to Al Gore, named John Roberts and Samuel Alito. When justices are installed by presidents who lack democratic support, at some point, the Court itself loses public confidence, and its decisions lose the respect of the people. The Court risks being seen as just one more cog in a political machine.
But the stakes of Barrett’s appointment are too high to abstain in the interest of principle. Barrett needs to be put under a miscroscope not only to determine whether she is fit to serve on the Court, but also to fully reveal to the public the potential consequences of the Republican agenda.
In Barrett, we can expect a justice who will decide cases from a conservative worldview, while being even less bound to precedent than her former boss and mentor.
Read the rest of McQuade’s review of Barrett’s record and her potential judicial impact here.
A stunning image
The culture warrior they’ve been waiting for?
Intelligencer’s Sarah Jones connects Barrett to the far-right, anti-feminist ideology of anti-ERA crusader Phyllis Schlafly:
For all the power the right wing is about to hand her[,] Barrett has indeed chosen a self-limiting ideology, and not just because of her views on Roe. Conservative women aren’t interested solely in abolishing abortion, or in limiting the scope of modern gender equality laws. Schlafly was an anti-communist who belonged to the John Birch Society before she ever campaigned against the ERA. Her anti-feminism comprised one strand of a comprehensively dangerous ideology. The women who serve the Trump administration aren’t much different, and neither is Barrett. A Supreme Court justice with right-wing perspectives on labor, the environment, immigration, and criminal justice can harm women from all backgrounds in all aspects of their lives. That is the intention, and not the accidental byproduct, of constitutional originalism. As embraced by jurists like Barrett and her old boss, Antonin Scalia, originalism is its own dogma; the extension of a political theology committed to an older and more exclusionary version of America.
Barrett understands all that. She’s exactly as intelligent as her advocates say, and she’s made all her choices with a sound mind. Her reward is power. If she’s confirmed by the Senate, she’ll be able to finish what Schlafly once started. She could help lock in Trump for another four years. She’ll be able to deal democracy and yes, the feminist movement the blows the Christian right has dreamed of landing for years.
Read the rest of Sarah’s response here.
The conservative pro-Barrett ad blitz is underway
Barrett’s Catholicism isn’t the battleground Republicans or some of her critics hope, but it is complicated
Intelligencer’s Ed Kilgore examines the growing Catholic supremacy on the Court as well as the unique and somewhat controversial “covenant community” Amy Coney Barrett belongs to:
There have been some reports — hotly disputed by Barrett allies — that the People of Praise have insisted upon patriarchal subordination of women and interferes with the personal liberty of members. The one thing that is clear is that in the unbelievably white-hot glare of a Supreme Court confirmation fight — particularly one with this fight’s perceived consequences — Barrett’s involvement with the People of Praise is going to attract attention and scrutiny like a magnet attracts iron shavings. And the potential for confusion and prevarication is great, since a deeply divided U.S. Senate Judiciary Committee is hardly an ideal venue for theological and ecclesiastical inquiries.
Standard questions about Barrett’s religious commitments — to her Church or to her “convenanted” charismatic group — and their impact on her legal thinking and concept of her own role in the judiciary are natural and indeed all but obligatory, and shouldn’t arouse any serious complaints about “anti-Catholicism,” though some Republicans will raise that charge metronomically no matter what Democrats do.
But Barrett’s inquisitors really need to educate themselves before launching themselves and the television viewing public down obscure rabbit holes chasing shadowy groups with complicated histories and allegiances.
Read the rest of Ed’s thoughts here.
Biden’s official response: Barrett and the GOP will end Obamacare
In his statement responding to Amy Coney Barrett’s nomination, Biden emphasized the health care fight, as expected:
[E]ven now, in the midst of a global health pandemic, the Trump Administration is asking the U.S. Supreme Court to overturn the entire law, including its protections for people with pre-existing conditions. If President Trump has his way, complications from COVID-19, like lung scarring and heart damage, could become the next deniable pre-existing condition.
Today, President Trump has nominated Judge Amy Coney Barrett as the successor to Justice Ginsburg’s seat. She has a written track record of disagreeing with the U.S. Supreme Court’s decision upholding the Affordable Care Act. She critiqued Chief Justice John Roberts’ majority opinion upholding the law in 2012.
The American people know the U.S. Supreme Court decisions affect their everyday lives. The United States Constitution was designed to give the voters one chance to have their voice heard on who serves on the Court. That moment is now and their voice should be heard. The Senate should not act on this vacancy until after the American people select their next president and the next Congress.
Kamala Harris concurred:
Lindsey Graham vows “challenging, fair, and respectful hearing”
Following Trump’s announcement, the Senate Judiciary Committee chairman (who vowed to confirm whoever Trump nominated last week) called Barrett “an outstanding Supreme Court nominee” who is “highly qualified in all the areas that matter – character, integrity, intellect, and judicial disposition.” Graham added that “I’m very committed to ensuring that the nominee gets a challenging, fair, and respectful hearing,” but it’s safe to say the only challenging part the confirmation process will be how fast he can make it happen.
It’s also worth noting:
The ever-classy GOP tries to rub it in
Not just snagging RBG’s seat, but trying to steal her meme to own the libs:
Barrett celebrates Scalia, Ginsburg, vows to uphold the law “as written”
She added that, “I fully understand that this is a momentous decision for a president, and if the Senate does me the honor of confirming me, I pledge to discharge the responsibilities of this job to the very best of my ability.”
Watch Barrett’s full speech here:
It’s official
Getting ready in the Rose Garden
What’s next in the confirmation process
A record pace:
Expect a whole lot of this from conservatives today and beyond
Put another way:
An evangelical pregame?
Fox News reports that “President Trump will meet Saturday with evangelical faith leaders, hours before he is expected to announce that he is nominating Amy Coney Barrett for the Supreme Court.”
What to expect today
Politico has the details:
One person close to the process said it felt like momentum was fading the longer the president waited to name his pick, and it was allowing Democrats to get a head start on playing offense.
With news of Trump’s decision already out, Saturday’s event in the Rose Garden of the White House will be more of a formality, serving as the official launch of an aggressive campaign by Republicans to get Barrett confirmed before the November election. Republican lawmakers, Cabinet members and prominent conservative leaders have been invited to attend, along with Barrett’s family, who will be flying in from South Bend, Ind. A Catholic contingency is also expected, as Barrett, a graduate of the University of Notre Dame Law School, is deeply religious. …
Behind the scenes, efforts are underway to prepare for the media frenzy that will swirl around Barrett. Statements and press releases touting Barrett as the pick were prepared in advance, and talking points were sent out to surrogates who might appear on television to talk about the Supreme Court nomination.
Sounds like a Democratic boycott of Barrett’s confirmation hearings is unlikely
The Washington Post reports that Senate Democrats are still trying to figure out how best to leverage a process over which they hold next to no control or influence:
Democrats say they have not made any final decisions about how much attention to show the nominee and the overall process. Some liberal activists want them to use a range of tactics that, at first glance, might delay the process — yet could also make it easier for Senate Majority Leader Mitch McConnell (R-Ky.) to confirm the nominee. Once the nominee gets to the hearing stage of the process, Democrats must decide whether to essentially protest the entire nomination and largely refuse to participate, or to engage and try to expose flaws in the judge’s background during what would probably be more than a dozen hours of questioning over two days.
Some activists are pushing Democrats to either boycott the hearings completely, or to use a rare maneuver to short-circuit the hearings after just two hours. But Senate veterans know that each of those decisions is fraught with peril, given that it will open up countermoves by Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) and McConnell that could only accelerate the process to confirmation.
Intelligencer’s Gabriel Debenedetti writes that while Democrats are now mostly resigned to the inevitability of a hard-right Court, some still hope to stage a dramatic takedown that could bolster their chances in November:
[T]here’s a more popular option still: to rely on the committee’s most famous member, who has a history of making life difficult for Republicans under her questioning, to seize the spotlight. A few hours after Mitt Romney sided with Trump, effectively stubbing out any remaining liberal faith that the confirmation could be stopped, I got a call from a despairing senior Democrat who was trying to rekindle a glimmer of hope in the broader fight against Trumpism. “If we don’t make this about Kamala Harris standing up to this guy and giving him a middle finger,” he said, “we have monumentally fucked up.”
Conservative groups are poised to spend big, fast
From Politico’s report on the pending Barrett nomination:
Conservative groups were quick to praise Barrett, long seen as their first choice for the seat. “Judge Amy Coney Barrett is an excellent selection who has shown a rock-solid commitment to originalism and the Constitution,” Club for Growth President David McIntosh said.
The White House has already started to reach out to senators to set up meetings with the nominee. The Senate Judiciary Committee expects to hold confirmation hearings the week of Oct. 12.
The Associated Press adds:
Outside conservative groups, who have been preparing for this moment for 40 years, are planning to spend more than $25 million to support Trump and his nominee. The Judicial Crisis Network has organized a coalition that includes American First Policies, the Susan B. Anthony List, the Club for Growth and the group Catholic Vote.
“One of the things we’ve learned from the histories of confirmation processes, the intensity of the fight has more to do with the previous occupant of the seat than who the nominee is,” said JCN’s Carrie Severino. “We expect this to be a very high stakes confirmation.”
Democrats say they’ll call for recusal on election outcome-related cases
CNN reports that Senate Democrats are planning to ask Barrett to recuse herself from Supreme Court cases involving the outcome of this fall’s elections:
Democrats have one major chance to paint the nominee unfavorably and potentially scuttle her chances during the hearings, which are tentatively scheduled to begin the week of October 12. The Democrats’ focus will in large part be on health care, including the nominee’s views on abortion rights, as well as the Affordable Care Act given that a GOP-led challenge to the law will be heard just a week after Election Day.
But Democrats plan to spotlight the arguments the President himself has been making in recent weeks over the fairness of the November 3 elections and the likely court fights that will ensue. Democrats, both on and off the Judiciary Committee, said that the nominee must make it clear she would not get involved in a case dealing with a President who had just nominated her to the lifetime position. …
“No one nominated in this process will be viewed as impartial,” Sen. Tim Kaine, a Virginia Democrat who was his party’s vice presidential nominee in 2016, said Friday. “That person sadly cannot be viewed as impartial on matters dealing with the presidential election – especially after the President said he’s got to get a ninth justice on the court to resolve these likely election disputes.” Kaine added: “I think in order to avoid an appearance of bias, you have to recuse yourself.”
Also:
Surely the first of many ads attacking GOP senators over the rapid SCOTUS pick
Trump characteristically teases when asked to confirm
The defense-through-attack spin is already underway
The countdown to confirm is about to begin, while polls continue to show that a majority of voters don’t want that
When Trump officially nominates Barrett tomorrow and officially notifies the Senate, Republican senators will have 38 days to confirm the nomination before Election Day. That would be an unprecedented pace for any Supreme Court nomination in modern American history, but with all but two members of the Senate GOP aligned to push ahead, it’s more likely than not they will be able to get it done.
Meanwhile, a moot point by American voters per the Washington Post on Friday:
[A new] Post-ABC poll, conducted Monday to Thursday, finds 38 percent of Americans say the replacement for Justice Ruth Bader Ginsburg, who died last week, should be nominated by Trump and confirmed by the current Senate, while 57 percent say it should be left to the winner of the presidential election and a Senate vote next year.
Partisans are deeply divided on the issue, though clear majorities of political independents (61 percent) and women (64 percent) say the next justice should be chosen by the winner of this fall’s election, including about half of each group who feel this way “strongly.”
A couple Senate Democrats flipped to support Barrett’s nomination the last time
History may not repeat itself in this much higher profile case, however.
Early reports confirm Barrett is Trump’s pick (unless it surprise isn’t)
CNN reports: “In conversations with some senior Republican allies on the Hill, the White House is indicating that Barrett is the intended nominee, multiple sources said.”
The Times adds that Trump “met with Judge Barrett at the White House this week and came away impressed with a jurist that leading conservatives told him would be a female Antonin Scalia.”
Of course, with this White House, anything is possible. CNN notes: “All sources cautioned that until it is announced by the president, there is always the possibility that Trump makes a last-minute change but the expectation is Barrett is the choice.” But as the Times also points out, there has been no evidence that the president interviewed anyone else.
Late shortlist additions Ted Cruz and Tom Cotton must be praying that the news really is “fake news.”
