US Senate confirms Amy Coney Barrett, delivering for Donald Trump and reshaping Supreme Court

The New York Times
·9-min read

Washington: Judge Amy Coney Barrett, a conservative appeals court judge and protégée of the late Justice Antonin Scalia, was confirmed on Monday to the Supreme Court, capping a lightning-fast Senate approval that handed President Donald Trump a victory ahead of the election and promised to tip the court to the Right for years to come.

Inside a Capitol mostly emptied by the resurgent coronavirus pandemic and an election looming in eight days, Republicans overcame unanimous opposition by Democrats to make Barrett the 115th justice of the Supreme Court and the fifth woman ever to sit on its bench. In a 52-48 vote, all but one Republican, Susan Collins of Maine, who herself is battling for re-election, supported her.

It was the first time in 151 years that a justice was confirmed without a single vote from the minority party, a sign of how bitter Washington's decades-old war over judicial nominations has become. The vote concluded a brazen drive by Republicans, who moved to fill the vacancy created by the death of Justice Ruth Bader Ginsburg just six weeks before the election. They shredded their own past pronouncements and bypassed rules in the process, even as they stared down the potential loss of the White House and the Senate.

Democrats called it a hypocritical power grab by Republicans who should have waited for voters to have their say on Election Day. They warned of a disastrous precedent that would draw retaliation should they win power, and in a last-ditch act of protest, they unsuccessfully tried to force the Senate to adjourn.

Republicans said it was their right as the majority party and exulted in their win. With Barrett's elevation in place of Ginsburg, a liberal icon, the court is expected to tilt decisively to the Right. It is gaining a conservative who could sway cases in every area of American life, including abortion rights, gay rights, business regulation and the environment.

Her impact could be felt right away. There are major election disputes awaiting immediate action by the Supreme Court from the battleground states of North Carolina and Pennsylvania. Both concern the date by which absentee ballots may be accepted.

Soon after, Barrett will quickly confront a docket studded with major cases on Trump's programmes and policies, not to mention a potential challenge to the election results that the president had cited as a reason he needed a full complement of justices before 3 November. Coming up quickly are challenges related to the Affordable Care Act, signature Trump administration immigration plans, the rights of same-sex couples and the census.

The court is also slated to act soon on a last-ditch attempt from Trump's personal lawyers to block the release of his financial records to a grand jury in Manhattan.

No Supreme Court justice is a certain vote, and Barrett pledged during her confirmation hearings to be an independent mind. But she is widely viewed by both parties as a judge in the mould of Scalia, her mentor, who would rule consistently in favour of conservative positions.

Neither her academic writing nor her relatively brief three-year stint on a federal appeals court provides strong evidence of how she would approach the wide array of cases that will come before her. She gave little hint during her hearings of how she regards any major issue, but she has criticised Chief Justice John Roberts for voting to uphold the Affordable Care Act, and she once signed onto an ad calling for overturning Roe versus Wade and its "barbaric legacy." It is a good bet that she will be among the court's most conservative justices, probably to the right of Roberts and Justice Brett Kavanaugh.

A jubilant White House held a swearing-in event shortly after the vote on Monday night to try to bolster to the president's flagging re-election campaign. Justice Clarence Thomas administered the oath of office. To hold the event at all was a remarkable choice after a similar one announcing the nominee one month ago to the day turned into a coronavirus superspreader event.

It was a confirmation saga that might never have materialised had Ginsburg, 87, who had been determined to stay on the court rather than be replaced with a justice of Trump's choosing, not died. Before she did, she had told her granddaughter she wanted a new president to instal her successor €" a deathbed wish that Republicans made clear they had no intention of honouring.

On Monday, Republicans had profound reasons to celebrate. Barrett, 48, was Trump's third nominee to the Supreme Court, but arrayed beneath her were 162 new district court judges and 53 appeals court judges who have been installed by Republicans over the past four years, roughly a third of the entire federal appellate bench. Together, they could hold broad sway over American law and policy long after Trump leaves office.

"The reason this outcome came about is because we had a series of successful elections," said Senator Mitch McConnell, R-Kentucky, the Senate majority leader, who was the architect of the strategy. "What this administration and this Republican Senate has done is exercise the power that was given to us by the American people in a manner that is entirely within the rules of the Senate and the Constitution of the United States."

Democrats sought to churn up a storm of outrage that they hoped would help sweep Republicans out of power and could set the stage for their own majority should it come to be.

Citing Barrett's academic writings and decisions from the appeals court bench, they argued that she would pose an immediate threat to the Affordable Care Act in the middle of a national health crisis, and that she would upend abortion rights and other popular freedoms enjoyed by Americans.

Taking aim directly at Republican senators, they warned that the decision to rush ahead with the election-season confirmation four years after denying a vote to Judge Merrick Garland, Barack Obama's Supreme Court nominee, under similar circumstances would come to haunt them.

"You may win this vote, and Amy Coney Barrett may become the next associate justice of the Supreme Court," said Senator Chuck Schumer of New York, the Democratic leader. "But you will never, never get your credibility back. And the next time the American people give Democrats a majority in this chamber, you will have forfeited the right to tell us how to run that majority."

Republicans claimed the circumstances were different this time because they control both the White House and the Senate. But if Democrats did reclaim power, the Right-tilting courts could prove a powerful and frustrating check on their legislative agenda. That prospect, and Democrats' fury over Republicans' hardball tactics since 2016, were fuelling a drive by the party's Left flank to seriously consider eliminating the last remaining vestige of minority rights in the Senate, the legislative filibuster. They could then proceed to expand the size of the Supreme Court to instal liberal justices.

Former vice-president Joe Biden, the Democratic presidential nominee, and leaders in the Senate have declined to discuss plans that could amount to a significant and potentially destabilising escalation in the fight over the judicial branch. But on Monday, even some more moderate senators hinted that the path was open before them if they needed to take it.

"They expect that they're going to be able to break the rules with impunity, and when the shoe maybe is on the other foot, nothing's going to happen," Senator Angus King, I-Maine, who votes with Democrats, said of the Republicans. "One of the things that's amazed me since I've come here is how people feel they can do things to one another and never have it have any consequences, never have it come back on them."

The battle to replace Ginsburg, a champion of women's rights and a heroine of the progressive left, always promised to be combustible in a Senate worn raw by earlier fights. But the timing turned up the heat considerably: Never before in American history had a justice been confirmed so soon before a presidential election.

The contest loomed over €" and at times eclipsed €" the nomination, as both sides sought to eke out an advantage from the struggle over the court seat. A handful of Republicans, led by Senator Lindsey Graham of South Carolina, the chairman of the Judiciary Committee, were hoping their roles in achieving a major conservative victory would be enough to pull them across the finish line of competitive races.

But for all of the partisan fighting, the confirmation process played out with remarkably little drama. Republicans quickly coalesced around filling the seat, regardless of whom Trump nominated, and that left Democrats with very little to do but turn to dilatory tactics and make their case to voters. So rich was the prize that Republicans quickly reversed statements from 2016 and 2020 pledging not to fill an election-year seat until the voters had a say.

Barrett's qualifications were really never in question, though she had less experience than some of her recent predecessors. But in three days of confirmation hearings, she managed to reveal vanishingly little about how she might look at or rule on matters of public interest before the court.

"Judge Barrett may have established herself as the Babe Ruth of saying pretty much nothing," Senator Ron Wyden, D-Oregon, said Monday.

Like five other justices, Barrett is Catholic. She has said her faith is central to her identity. But in other ways, she breaks the court's mould. A Notre Dame alumna, she will be the only justice who did not graduate from Harvard or Yale. She also has seven children, two of whom were adopted.

After playing down its implications during the hearings, some Republicans openly celebrated her anti-abortion rights stance on Monday.

"The nomination of Amy Coney Barrett is truly historic," said Senator Josh Hawley, R-Missouri. "This is the most openly pro-life judicial nominee to the Supreme Court in my lifetime. This is an individual who has been open in her criticism of that illegitimate decision, Roe versus Wade."

By the time senators gathered Monday night for the final vote, many were exhausted from a debate that had lasted through Sunday night into Monday and from jetting back and forth between Washington and the campaign trail.

Vice-President Mike Pence had planned to preside over the vote, but after five of his close aides tested positive for the coronavirus, senators pleaded with him to steer clear of the chamber, which he did.

Collins framed her decision this time as a matter of principle. Republicans set a standard in 2016 by not confirming a nominee in an election year and should do the same now, she argued. She is trailing in a race in a liberal-leaning state in part because of her constituents' fury at her vote for Kavanaugh, Trump's last nominee.

Senator Lisa Murkowski of Alaska, another Republican swing vote, made a similar argument, but ultimately voted to confirm Barrett.

Nicholas Fandos c.2020 The New York Times Company

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