After Supreme Court Justice Ruth Bader Ginsburg’s death last week, Republican Senate leadership and President Donald Trump quickly announced their intent to fill the vacancy despite the fact that we are six weeks away from the election. Senate Majority Leader Mitch McConnell (R-Ky.) refused to give Barack Obama’s nominee Merrick Garland a hearing, he said, because the “American people should have a voice in the selection of their next Supreme Court justice.” In a recently unearthed 2016 interview, conservative judge Amy Coney Barrett, the presumed frontrunner to fill liberal icon Ginsburg’s seat, discussed her understanding of the debate on appointing a justice in an election year.
One of the considerations Barrett mentioned was that filling the vacancy left by conservative Justice Antonin Scalia, for whom she once clerked, could “dramatically flip the balance of power” on the court. Barrett, who was a law professor at Notre Dame at the time, noted that there is nothing in the Constitution that says the Republican-led Senate had to consider Garland’s nomination. She also presciently said that whatever happened with the Garland nomination, it would not create an iron-clad rule for future presidents.
“I think the question is, what does this precedent establish? And I don’t think it establishes a rule for either side in the debate,” Barrett said. “But if you look back, say, at the six that were confirmed in the 20th century in a presidential election year, all but one of those were confirmed—in a period of united government, where the President and the Senate were of the same political party. And it shouldn’t be a surprise that the Senate is willing to push the president’s nominees through in an election year when they share the same political affiliation.”
Barrett said the “one exception” to this was the confirmation of Justice Anthony Kennedy. While Kennedy was confirmed by a divided government in an election year, the vacancy he filled arose in the year prior to the presidential election.
But Barrett also emphasized the significance of a president replacing a justice with their ideological opposite. She discussed how that could affect the “balance” of the court and, therefore, how it might affect political calculations surrounding nominations.
“Moreover, Kennedy is a moderate Republican and he replaced a moderate Republican – [Lewis] Powell. We’re talking about Justice Scalia, the staunchest conservative on the court, and we’re talking about him being replaced by someone who could dramatically flip the balance of power on the court – it’s not a lateral move,” she said. “And this is not the time we live in now, post-[Robert] Bork, as we all know confirmation hearings have gotten far more contentious. And so I just don’t think we live in the same kind of time.”
Barrett then summed up her view of the situation.
“So I think, in sum, the President has the power to nominate and the Senate has the power to act or not — and I don’t think either one of them can claim that there’s a rule governing one way or the other,” she said.
Fast forward to today and it’s more than likely that a Republican president and Republican-majority Senate will appoint a new justice and dramatically flip the balance of the Supreme Court for many years to come.
[image via CBSN screengrab]
Follow Law&Crime:
