Democrats Worked Hard To Put Amy Coney Barrett On The Supreme Court

Democrats Worked Hard To Put Amy Coney Barrett On The Supreme Court

Had Democrats given Trump's judicial nominees due respect and consideration, they could have had more influence over Barrett's nomination process.
J.B. Shurk
By

Judge Amy Coney Barrett is now Justice Amy Coney Barrett, replacing the late Justice Ruth Bader Ginsburg on the Supreme Court. For invoking the “nuclear option” in the Senate back in 2013 and eliminating the filibuster for non-Supreme Court judges, Harry Reid deserves his round of applause. Reid is not the only Democrat to have worked hard on Barrett’s behalf — indeed, the Democratic Party’s actions during both the Neil Gorsuch and Brett Kavanaugh confirmation hearings played a pivotal role in making the new Supreme Court.

When Justice Antonin Scalia died in February 2016 and Senate Majority Leader Mitch McConnell declined to hold hearings on President Obama’s choice for his replacement, filling Scalia’s seat became an important campaign issue for many conservatives. For some Republican voters leery of Donald Trump as their standard-bearer, Scalia’s death crystallized the binary choice before them: either Hillary Clinton or Trump would choose the next member of the U.S. Supreme Court.

President Obama’s nomination of Merrick Garland, a judge many legal commentators viewed as more ideologically moderate, looked tantalizingly good for some Republicans quite worried about the choice a President Hillary Clinton might make. Whatever reservations some Republicans might have had about Trump as a candidate, they were meaningless next to the possibility of replacing the quintessential conservative voice on the court with a young Ruth Bader Ginsburg clone.

Candidate Trump was so aware of the importance his voters placed on finding a worthy intellectual heir to Scalia that he released the names of 11 conservative jurists, promising, if elected, to select a nominee exclusively from the list. Never had a candidate for the presidency been so clear in his intentions for the Supreme Court. The promise won over many hesitant conservative voters.

Unlike Trump, however, Clinton did not make the 2016 election a referendum on Scalia’s seat. Democrats seemed convinced that either Garland would eventually be confirmed to the Supreme Court, or a “lame-duck” Obama or newly inaugurated President Clinton would swap the “center-left” Garland for an ideological hardliner after her “inevitable” victory.

Republican voters who turned toward Trump after Scalia’s passing had only one expectation of the new victorious president — that a young, rock star conservative now join the bench. To that end, President Trump did his job by selecting Gorsuch a week after his inauguration.

It was around this point that Democrats began to pave the way for a future Justice Coney Barrett. Instead of conceding that the Constitution’s “advice and consent” clause empowered Senate Majority Leader McConnell to hold off on President Obama’s nominee for the Supreme Court, and instead of conceding that President Trump had legitimately won the 2016 election against Clinton, Democrats refused to acknowledge either reality.

Senate Minority Leader Chuck Schumer and Senate Democrats used the early rumblings of the ginned-up Russia hoax to deem President Trump’s constitutionally delegated appointment power as somehow illicit and demanded that any nominee to the Supreme Court be chosen by lawmakers in bipartisan agreement.

Schumer went so far as to argue that rejecting the well-qualified Gorsuch balanced McConnell’s refusal to hold hearings on Garland and that a new “compromise” nominee should be considered going forward. In making this demand, Schumer relied on the fact that Reid’s “nuking” of the judicial filibuster had not included nominees to the Supreme Court and that Republicans had only 51 members in the Senate in 2017, well short of the 60 votes needed to proceed.

Schumer insisted that McConnell respect a filibuster that he and Reid had destroyed four years earlier for all other judges, but his threats did not have their intended effect. Republican senators who might otherwise have joined Schumer in protecting the legislative filibuster for Supreme Court nominees could not justify giving the Senate minority the power to veto an exceptional judicial nomination by President Trump out of purely political — and non-constitutional — considerations. Too many Republican voters had put them in office for the specific purpose of replacing Scalia with a strong conservative jurist.

By forcing the hands of Republicans in the battle for Gorsuch’s nomination, Schumer made it impossible for Republicans not to finish what Reid had started by “nuking” the filibuster for Supreme Court nominees, as well. But for this political battle in early 2017, Barrett’s nomination would have still required at least eight Democrats to accede to her confirmation.

The refusal of Democrats to accede to Gorsuch’s nomination lost them filibuster power, yet it was their outrageous abuse of Kavanaugh during his confirmation hearings that truly paved the way for Barrett’s smooth confirmation.

When President Trump nominated Kavanaugh to replace the retiring Justice Anthony Kennedy, the stakes were a little higher for Democrats. Although President Reagan nominated Kennedy after Senate Democrats effectively prevented the confirmation of Judge Robert Bork in 1987, Kennedy spent much of his career as a swing vote on the court. Democrats insisted that Kennedy be replaced by a judicial “moderate.”

President Trump refused and once again turned to his promised list of jurists for Kavanaugh’s nomination. Then, at the eleventh hour, after an otherwise straightforward confirmation process before the Senate Judiciary Committee, Sen. Dianne Feinstein and the Democrats attempted to upend the proceedings by preposterously accusing Kavanaugh of being a serial rapist back in high school.

Another Republican president might have been too squeamish to continue and pulled the nomination. President Trump, however, did no such thing. Another Republican Senate might have been too timid to stand behind Kavanaugh, but standing behind Trump they too were unwilling to cave.

Kavanaugh had been not only a member of the Bush administration but also a well-known and highly regarded legal mind among Republicans for more than two decades. Some might even have considered him an establishment favorite. For Democrat dirty tricks to be allowed to succeed against a judge so universally admired by Republican lawmakers would essentially make it impossible for any respected conservative jurist to be nominated ever again. Republicans in the Senate stood by Kavanaugh by rejecting the Democrats’ calculated smear tactics.

Had Republicans not come together to reject the “Borking” of Kavanaugh in 2018, the nomination of Ginsburg’s replacement might have looked quite different. As Ginsburg was for the left what Scalia was for conservatives, some Republicans in the Senate might have felt obliged to seek a middle ground with Democrats by urging President Trump to consider a Kennedy-esque nominee. The wanton hostility displayed by Democrats during Kavanaugh’s confirmation precluded that from ever being a possibility.

Instead, President Trump nominated a highly qualified, albeit ideologically antithetical, replacement for Ginsburg’s seat, and Republicans in the Senate ignored Democrat attempts to derail her nomination and confirmed Barrett to the Supreme Court. Democrats had to work hard to make that possible.

J.B. Shurk is a proud American from Daniel Boone country.

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