The week of October 13th marked the beginning of the confirmation process of U.S President Donald Trump’s Supreme Court nominee Amy Coney Barrett. It is widely expected, given the current political climate in the US, that this process will be just as ugly, if not more, than the previous one with Brett Kavanaugh in September of 2018. I would be remiss, however, to say that the only reason for the contentiousness in Barrett’s confirmation process is due to Trump’s opportunity for a third appointed Supreme Court justice in just one term. In actuality, this nomination has much greater implications for how court rulings are interpreted in the future and in which ideological direction the Supreme Court moves in the coming decades. With Supreme Court Justice positions being life-long appointments, such effects resulting from Barrett’s potential confirmation could last generations.
Barrett’s appointment to the Supreme Court fills a vacancy left by the death of Ruth Bader Ginsburg last month. Justice Ginsburg, an American progressive icon, had served on the Supreme Court for twenty-seven years. She was nominated by then-President Bill Clinton and confirmed by the US Senate in 1993. Since her appointment, Justice Ginsberg was known to be a progressive pillar to the Court and had developed into a cult of personality among American liberal society. Many pundits in politics and entertainment referred to her as “Notorious RBG” (a play on the name of the infamous 90’s gangster rapper Notorious BIG). Through the years, Justice Ginsberg had played a leading role on the high court’s decisions on gay marriage, abortion, and gender equality. As a result, the death of Ginsburg, who had battled with pancreatic cancer, has been a gut punch to hopes of maintaining at least a centrist position to the Supreme Court. On the flip side, the Republicans are seizing the opportunity of creating a solid conservative majority in the highest court in the land for years to come.
Enter Amy Coney Barrett. She is a forty-eight-year-old judge for the US 7th Circuit Court and Notre Dame law professor who also clerked for Justice Antonin Scalia in the late 1990’s. Her views on issues such as gun rights, immigration, and the particulars of Title IX on university campuses are highly regarded by conservative constitutionalists. Additionally, her self-professed conservative Catholic beliefs and pro-life stance win her much praise from social conservatives as well. By any measure, Barrett is more than qualified for the appointment, but the political ramifications of such a conservative judge on the Supreme Court, while also solidifying a six to three conservative majority are raising the prospect of the nomination process turning personal and ugly.
However, this still is not the main cause of the liberal uproar. It is the fact that President Trump will have a judge nominated to the Supreme Court mere weeks or even days before the November 3rd election. Back in 2016, the death of Justice Antonin Scalia left a vacancy during an election year. In an attempt to fill the vacancy, then-President Barack Obama nominated Merrick Garland to be confirmed by the Republican-led Senate. This was rebuffed by the Republican Senate leader Mitch McConnell under the conditions that it was not customary to confirm a Supreme Court nominee made by an outgoing president during an election year. The result was the Garland nomination being shelved and the eventual confirmation of Trump-appointed Neil Gorsuch in April 2017. Fast forward to today and the same situation has reappeared; only this time with President Trump, who is currently not an outgoing president and with his party still in control of the US Senate (the governing body tasked with voting for or against Supreme Court nominees). The opinions of Senate leadership have changed regarding this nomination process and it is clear that politics is the main player in the decision.
This raises the stakes for both political parties in the upcoming November 3rd election, which has already been nasty and brutal in every metric up this point. With nearly every senate Republican stating that they will cast their vote in the nomination process, it is almost certain that Amy Coney Barrett will be confirmed to the Supreme Court. Such an appointment represents a paradigm shift in the ideological leanings of the highest court in the United States that may last a generation. Regardless of the outcome of the up-coming election, President Trump has decided that such a shift must be taken and now; the consequences be damned.
Ryan Brockhaus is a Senior Fellow with the Budapest Fellowship Program at the Hungary Initiatives Foundation.