America recently mourned the death of Ruth Bader Ginsburg, who served 27 years on the Supreme Court. She passed away Friday due to complications from metastatic pancreatic cancer.
Now, the country is looking ahead to Ginsburg’s replacement. Most expect President Trump to select Amy Coney Barrett, a mother of seven, devoted Catholic, strong conservative, and current judge for the Seventh Circuit Court of Appeals.
Several lawmakers and journalists are criticizing Barrett’s potential appointment, attacking her religious beliefs and condemning President Trump and Senate Majority Leader Mitch McConnell for opting to fill the vacant seat during a presidential election year.
None of the criticisms offers a good rationale for why Barrett should not be confirmed before the election. In fact, there are several excellent — and imperative — reasons to complete the confirmation process before the November election.
The Election May Require a Tie-Breaking Supreme Court Vote
The November presidential election is already shaping up to be a tempestuous one. On top of pressing issues like COVID-19 and nationwide protests, many people are concerned about potential delays and fraud stemming from an unusually large amount of mail-in voting.
The last thing America needs is a nightmare scenario in which a candidate files a lawsuit challenging the election results and the case gets appealed to the Supreme Court, with no ninth justice available to break a potential 4-4 tie.
The scenario isn’t hard to imagine. In 2000, Republican candidate George W. Bush was announced the winner over Democrat Al Gore by a mere 537-vote margin. Gore then filed a lawsuit in which the Florida Supreme Court ruled that ballots with a “hanging chad,” i.e., ballots that weren’t completely punched through and therefore weren’t registered, should be recounted.
The U.S. must safeguard against a potential tie on the Supreme Court, which is possible with only eight justices.
The lawsuit was eventually appealed to the U.S. Supreme Court, which voted 7-2 to end Florida’s vote recount. The justices also voted 5-4 that there was no other way to count the votes in a timely manner. Bush took the presidency.
Needless to say, if an election lawsuit is filed this year, the U.S. must safeguard against a potential tie on the Supreme Court, which is possible as long as there are only eight seats filled.
A Female Justice Would Honor Certain Aspects of Ginsburg’s Legacy
President Trump promised to nominate another woman in Ginsburg’s place, a decision that honors Ginsburg’s legacy as a pioneer for women’s equal rights in universities and the workplace.
"I will be putting forth a nominee next week. It will be a woman," Trump said at a rally in Fayetteville, North Carolina on Saturday.
It would be fitting to replace Ginsburg with another female justice.
Barrett, to be sure, disagrees with Ginsburg on many other aspects of her judicial philosophy, especially Ginsburg’s support for abortion. But even conservative women in America can appreciate the fact that Ginsburg graduated at the top of her Columbia Law School class in 1959, a time when it was unpopular for women to attend college. Ginsburg was also the first woman to receive a full professorship at the school, and later on, the second woman to be appointed to the nation’s highest court.
Traditional feminists should celebrate Barrett's nomination.
It would be fitting, then, to replace Ginsburg with another female justice, especially one who is unprecedented in being a mother of seven while also achieving a high-level court position. Barrett disproves French President Emmanuel Macron's condescending comment: “Present me the woman who decided, being perfectly educated, to have seven, eight, or nine children.” True feminists should celebrate Barrett's nomination.
Barrett Already Passed a Previous Senate Confirmation
Barrett was already confirmed by the Senate in 2017 to the Seventh U.S. Circuit Court of Appeals in Chicago. Notably, Barrett’s confirmation did receive bipartisan support: all 52 Republicans voted in her favor, in addition to three Democrats.
Barrett has been on the president’s shortlist of potential Supreme Court nominees since 2017.
Since her confirmation, Barrett has been on the president’s shortlist of potential Supreme Court nominees. Trump said in 2019 that he was “saving” her for Ginsburg’s seat.
Barrett Reflects Conservative Voters’ Values
Although the Supreme Court currently has a majority of Republican-appointed justices, not all of them consistently represent the values of conservative voters. Barrett, a strong conservative and a protégé to former Supreme Court Justice Antonin Scalia, would serve as a welcome change to those voters.
Chief Justice John Roberts is the Republican-appointed justice most likely to vote with the court’s liberal faction. He established himself as the court’s swing vote most decisively this past summer in June Medical Services v. Russo where he appealed to a bad legal precedent (which he himself admitted was a bad precedent), further solidifying abortion protections. Barrett, in contrast, rejects Roberts’ strict deference to legal precedent.
It’s Not Wrong To Fill a Vacancy during a Presidential Election Year
Some politicians and journalists criticized Trump for trying to fill the Supreme Court vacancy during a presidential election year. They ignore the fact that this scenario has occurred 29 other times, and the sitting president in each instance has never failed to announce a nominee. In nine cases, the nominee was confirmed before the election.
Still, Democrats point out the apparent hypocrisy among Republicans like Senate Majority Leader Mitch McConnell, who refused to confirm the Democrats’ 2016 nominee Merrick Garland, citing the fact that it was a presidential election year.
"The American people should have a say in the court's direction,” McConnell said in 2016.
In contrast, 2020 McConnell appears to have no concerns about what voters think, Democrats argue, and is moving ahead with Barrett’s confirmation.
29 other sitting presidents have nominated a Supreme Court justice in an election year.
Of course, the real reason McConnell refused to confirm Obama’s nominee but obliged to confirm Trump’s is simply that he had the votes to do so in both instances. McConnell’s actions follow the general custom: politicians will fill a Supreme Court vacancy as long as one party controls both the White House and the Senate. If the White House and the Senate are controlled by different parties, they won’t necessarily appoint a new nominee during a presidential election year. In fact, they haven’t done so since 1888.
So McConnell violates no rules or customs by moving forward with Barrett’s confirmation. Neither would a Democrat if they stood in McConnell’s position.
The Senate Is Likely To Confirm Barrett
Supreme Court nominees used to require a 60% majority vote to be confirmed. Now, confirmation takes only a 51% majority.
The change came in 2013, after Democrats got frustrated that Republicans weren’t approving their judicial nominees. Harry Reid, then-Democratic Senate Majority Leader, invoked what he called the “nuclear option,” i.e. removing the filibuster on executive appointments and most judicial nominations.
Supreme Court nominees only need a 51% majority to be confirmed.
So, thanks to Reid, Barrett faces no Senate barriers to her confirmation this year. Assuming that no Democrats vote for Barrett, it would take only three Republicans to sink her appointment. One of the handful of potential swing voters, Sen. Mitt Romney of Utah, announced Tuesday that he would vote for Trump’s nominee.
Barrett is to conservatives what “the notorious RBG” was to liberals: a full endorsement of their principles and values. As a result, the outrage at Barrett’s potential nomination comes as no surprise. But there’s no good reason she shouldn’t be confirmed.