By Abbey Delk
The 2020 presidential election is exactly a week away, and the nation waits with bated breath for the outcome of this ugly and contentious political battle. However, a separate yet equally important political brawl has been playing out over the last month in the Senate, and the Republican majority is poised to claim victory.
Supreme Justice Ruth Bader Ginsburg’s death at the end of last month marked the beginning of a push by President Donald Trump and Senate Republicans to nominate and approve a replacement before the election on November 3. Just a week after Ginsburg’s passing, President Trump announced his choice of Judge Amy Coney Barrett, a circuit judge on the U.S. Court of Appeals for the Seventh Circuit. Barrett’s appointment to the Supreme Court would further push it to the right, creating an even larger conservative majority of six judges.
From the beginning, there has been intense debate over the legitimacy of Barrett’s rushed nomination process. Republicans, led by Senate Majority Leader Mitch McConnell, have insisted that it is constitutional for Trump to nominate Barrett and for the Senate to approve her, despite the looming presidential election. While this is technically true, Senate Democrats have still protested the nomination, arguing that the hurried nomination represents huge hypocrisy on the part of the Republican majority.
Democrats pointed out that Senate Republicans blocked President Barack Obama’s nomination of Judge Merrick Garland to the Court in 2016, citing a precedent that sitting presidents should not nominate new Supreme Court judges during election years. This argument was not supported by Constitutional law, but Republicans were still successful in leaving the seat open until President Trump was elected, allowing Trump to appoint a conservative judge instead. Now, Democrats argue that Republicans in the Senate should honor this same logic, especially since Barrett’s nomination came much closer to Election Day than Merrick’s did in 2016.
However, Senate Republicans are intent on completing Barrett’s nomination process as quickly as possible, ignoring any hypocrisy this decision might indicate. While some Senate Republicans hinted their disapproval or concern with the rushed nature of the nomination in the beginning, most now seem to have abandoned those concerns in favor of supporting Barrett’s appointment. Alaska Senator Lisa Murkowski, for example, had previously said that she felt the Senate should not take up a Supreme Court nomination so close to the election. However, she reversed this stance on Saturday by confirming that she would vote yes on Barrett’s appointment this week.
“I believe that the only way to put us back on the path of appropriate consideration of judicial nominees is to evaluate Judge Barrett as we would want to be judged—on the merits of her qualifications. And we do that when that final question comes before us. And when it does, I will be a yes,” Murkowski said on the Senate floor. This reversal marks a major disappointment for pundits on the left, some of whom had hoped that enough Republicans might express concerns about the nomination for it to be postponed until after Election Day.
Democrats in the Senate have still attempted to delay the nomination process. Last week, Democratic senators forced a closed session to privately express their concerns over the entire process, a rare and mostly symbolic move likely meant to indicate a real effort to block Barrett from the bench to their supporters. Senate Minority Leader Chuck Schumer said the closed session was meant to facilitate a “candid conversation” about the morality of the entire process.
“I believe the Senate majority is on the precipice of making a colossal and historic mistake by rushing this nomination through the Senate only eight days before a national election,” said Schumer.
However, Republicans in the Senate shut down this conversation fairly quickly, reopening the chamber’s doors just minutes after the closed session had begun on Friday. McConnell and Schumer shared a heated exchange on the Senate floor later that day, and Schumer expressed deep disapproval of the conduct of McConnell and the other Senate Republicans.
“Might does not make right,” Schumer said on the floor. “You did something wrong, so we can do something wrong is no justification when the rights of the American people are at stake.”
McConnell shot back, arguing that Senate Democrats were responsible for turning Barrett’s nomination into a political theater and breaking established norms without just cause.
“Every new escalation, every new step, every new shattered precedent, every one of them, was initiated over there. No exceptions,” McConnell said. “And it all happened over the strenuous objection of Republicans who tried in each instance to stop Democrats from trading away long-term Senate norms for short-term political wins.”
However, Schumer threw this accusation right back at the Republican majority. “While they may realize it or not, our Republican majority’s monomaniacal drive to confirm this justice in the most hypocritical, the most inconsistent of circumstances will forever defile the Senate. And even more importantly curtail the fundamental rights of the American people for generations to come,” he said.
Democrats’ efforts to point out Republican hypocrisy and wrongdoing are unlikely to actually do anything to slow or prevent Barrett’s nomination at this point. The Senate is expected to vote on Barrett’s appointment at the beginning of this week, and there is little reason to believe she will not be confirmed. Senate Republicans simply have enough votes to push Barrett through, no matter how loud Democrats’ cries of protest have been. All Democrats are expected to vote against the nomination, but it is likely Barrett will claim Ginsburg’s vacant seat in the end.
The negative consequences of this nomination for Democrats might materialize immediately, as Barrett will likely be on the Court when it hears a case on the Affordable Care Act a week after the election. A strong conservative majority on the Supreme Court puts the future of Obamacare in serious jeopardy. There is also a possibility that controversy over the legitimacy of the upcoming election, especially considering allegations from the right that mail-in voting will lead to election fraud, will end up in front of the Supreme Court. Barrett has already indicated that she would not recuse herself from voting on a case about the presidential election.