Sunday, cloture on the Supreme Court nomination of Judge Amy Coney Barrett was invoked by the Senate, which limited debate and enabled that body to hold a confirmation vote for her on Monday night. That's why October 26 promises to be a milestone for the Constitution and the country.
From the time of his first election four years ago, President Trump promised to appoint justices in the mold of Antonin Scalia and Clarence Thomas, jurists who embrace originalism and textualism. With the nomination of Judge Barrett, he kept that promise.
Majority Leader Mitch McConnell also kept his word on filling any vacancy that might arise—and to do so successfully required an unflinching commitment, which he had from day one. In an earlier era, someone with the qualifications and character of Barrett would have been confirmed by a unanimous or nearly unanimous vote. The challenge for Senate leadership to secure a floor vote would have been minimal.
Not so in this era of a hyper-politicized judiciary, when the Democratic playbook is to treat courts as vehicles for policy. From day one, before Barrett had even been nominated, Senate Democrats did their utmost to keep the seat vacant.
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They made transparently baseless arguments against filling the seat, from ignoring or misrepresenting history—recall the false account of Abraham Lincoln’s Supreme Court vacancy—to a flip-flop on their willingness to conduct Senate business during the pandemic.
McConnell refused to allow the Democrats to move the goalposts, and so many of his fellow Republicans, recognizing from the outset what an outstanding nominee Barrett was, did their utmost to ensure she would be fairly considered.
The most instrumental of McConnell’s colleagues in this regard was, of course, the chairman of the Senate Judiciary Committee, Lindsey Graham, R-S.C.
Two years after his Democratic colleagues’ abuses gave rise to a disgraceful and protracted hearing process, the chairman handled the nomination in committee so efficiently and deftly that he was able to keep his committee’s consideration on a pre-election timetable while still earning praise from ranking member Sen. Dianne Feinstein, D-Calif., for his fairness in conducting the hearings.
That speaks volumes, given the distractions and sideshows that came from Feinstein’s side of the aisle.
During the hearings, Democratic members of the Judiciary Committee acted as if they were hammering out the details of health care legislation.
One after another, they trotted out troubling stories about people struggling with illnesses, complete with blown-up photos. “I don’t know what any of that has to do with what we’re here to do today,” quipped Sen. Ben Sasse, R-Neb., "Huge parts of what we’re doing in this hearing would be really confusing to eighth-graders,” who were essentially hearing “2009 Finance Committee debates about what should be in a healthcare reform package” rather than what belongs in a Supreme Court nomination hearing before the Judiciary Committee.
Sasse was just one of the many Republican members of the committee who repeatedly stepped up to put the discussion back on track. Among the committee’s attorneys, Senators Mike Lee, R-Utah and Ted Cruz, R-Texas, led the way in emphasizing the preeminent role the Constitution should play in the process.
The challenges at the committee level did not end with the hearings. Chairman Graham had to contend with a full-blown boycott of the Judiciary Committee’s executive business meeting on the day of the vote to report Barrett out to the full Senate. All 12 Republicans were there to cast their votes without losing any time.
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Of course, the number one reason this process was able to reach the brink of confirmation is the nominee herself. Judge Barrett’s qualifications, her brilliance, and
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her poise were on full display during the hearings.
So was her commitment to constitutionalism and the rule of law. The American Bar Association gave her its highest rating, and no one could seriously disagree.
Praises for her, both personal and professional, are in abundance from people across ideological lines who have known and worked with her.
Even Minority Leader Chuck Schumer, D-N.Y., showed perhaps more of his hand than he intended when he admitted, “It’s not about qualifications. It’s about what the American people need and want . . . .”
For him, courts are about policy rather than law. For the most part, as even the New York Times recognized, on the Senate floor, “Judge Barrett receded to the background” as debate focused on “the confirmation process itself.” In fact, much floor time was spent discussing unrelated issues.
Schumer forced a series of roll call votes as a dilatory tactic, but it was another empty stunt. The minority leader bookended the scurrilous arguments his party had initially made against filling the seat with the grandiloquent declaration that this was the “least legitimate process in the entire history of Supreme Court nominations.”
We can laugh at that statement as an inadvertent act of self-parody by a senator who is routinely loose with facts and who months ago shamefully threatened Justices Neil Gorsuch and Brett Kavanaugh, “You have released the whirlwind, and you will pay the price!” He later clarified he was speaking of a “political price.” But such statements should be taken seriously. They begin to lay out the argument for the growing demand among Democrats to pack the Supreme Court if they win the election.
For now, thankfully, the Democrats were unable to prevent McConnell from meeting his earlier announced target date for a confirmation vote.
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It is difficult to overstate the importance of the confirmation of Amy Coney Barrett to be the next associate justice. Besides being an outstanding jurist, she would give the Supreme Court its first originalist majority since the advent of the modern debate over constitutional law.
That is a gift to the Court and the nation. It gives us a system better resembling a republic. To borrow Benjamin Franklin’s famous words, let’s hope we can keep it.
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