Below is my USA Today column on the unsettling course Democratic Members took in Judge Amy Coney Barrett’s confirmation hearing. As I said, there are a number of legitimate questions about Judge Barrett’s view of the law. In fact, I praised the exchanges between Senator Dick Durbin (D., IL.) And Judge Barrett as a major highlight of the hearing. Unfortunately these were the exceptions. Instead, the entire hearing was about Barrett’s being ineligible for the Affordable Care Act (ACA) due to her expected vote in the upcoming case. Various senators directly stated that they would vote against Barrett to protect the ACA. That is what is so worrying about the Barrett Verification Trial.
Here is the column:
The hearing to confirm Judge Amy Coney Barrett could easily have been confused with the hearing to convict John Wayne Gacy. There were huge pictures of sick people around Barrett. One would think Barrett was confronted with the faces of their victims. In reality, the images captured a far more important message perfectly. The Senators had finally freed themselves of any principle when reviewing a candidate’s qualifications. Indeed, many are in the process of creating a new rule, Barrett’s Rule, which will allow conditional confirmation voting. The pictures were supposed to put pressure on Barrett either to convince the senators that they would vote against a challenge to the Affordable Care Act or they would vote against its endorsement.
There has long been a debate about the legitimate reasons for rejecting a candidate for the Supreme Court. While constitutional senators can vote for good, bad, or no reason, most have tried to justify their votes on a principled basis. For most of our history, the senators followed the rule that disagreement with a candidate’s views on the case law was not a basis for voting against their endorsement. A president was considered constitutionally entitled to appoint lawyers who reflected their own legal viewpoint, and the primary basis for voting against a candidate was lack of qualifications or a disqualifying personal or professional controversy. It was a rule of senatorial respect that controlled the majority of nominations in our history.
Vote against nominees based on their expected votes
In the second half of the 20th century, the members began to rub against the limits of this principle. With abortion, desegregation, and other hot button issues, affirmations became politics in other ways. With each passing year, the senators became more open to voting against candidates based only on their expected votes. That trend was accelerated in October 1987 in Judge Robert Bork’s confirmatory hearing presided over by a Delaware Senator named Joe Biden. Bork has been labeled “outside the mainstream” of legalism and rejected in a process now called “Borking”.
Democratic members struggle to change the rationale for voting against Barrett, who is an accomplished academic and respected lawyer with impeccable credentials. One such implausible claim was made the day before Senator Chris Coons (D., Del.) Sunday hearing on Fox News. He claimed the nomination was “court wrapping”. Both Biden and his runner-up Sen. Kamala Harris (D., Cal.) Have labeled the Conservative nomination as court wrapping. Biden and others have refused to tell voters whether they will grab the Supreme Court if the Democrats retake both the Senate and the White House (a proposal once denounced by Ruth Bader Ginsburg herself). Rather than responding, Coons and others insist that Barrett’s nomination is a trial – a position that would allow them to vote against her without having to take into account their actual qualifications.
The portrayal of the Barrett nomination as court wrapping is absurd on the face. Court wrapping is the extension of the court to create a dominant ideological majority. In relation to such a proposal from Franklin Delano Roosevelt, Senator Joe Biden once denounced it as “a headless idea.” . . a terrible, terrible mistake ‘in trying to add seats to the Court just to get a majority. Filling a position on the Supreme Court is not a judicial filling by any remotely plausible definition. Otherwise, whenever you disagree with a president’s decisions, it would be a trial even though you leave the court the same size.
With little traction in the packing station, the senators had a rare moment of clarity. In fact, Sen. Cory Booker (D., NJ) captured it best when Booker, without waiting to hear from Barrett, announced that he would vote against her. The reason was that she could vote against the ACA. The clear suggestion is that after an election, the Democrats hoped to nominate someone who would clearly support the ACA. The problem was simply their expected November 10th vote in the California v Texas case.
Barrett and the ACA
We have now reached the rubicon of confirmation policy. Thirty-three years after the hearing in Bork, the senators are now removing any pretext or nuance: they will defy Barrett for expecting over cases. In particular, Democrats have argued that they will be voting against Barrett to prevent them from voting on a pending California v Texas case that addresses the ACA’s constitutionality. Senator Mazie K. Hirono (D., HI) recently announced that she would vote against Barrett because “she will vote to crush the affordable care law”.
In reality, the ACA case is unlikely to be put down. The Court of Justice can agree to the lower court by declaring the individual mandate of the original ACA unconstitutional. The real question, however, is whether this provision can be “severed” from the rest of the law. Most legal experts believe that the court has a clear majority to approve the settlement and keep the rest of the law. The law was originally saved by Chief Justice John Roberts, who found the individual mandate to be constitutional. Congress later revoked the mandate.
The question before the Court is whether the remainder of the law can be “severed” from the now defunct mandate – an issue that transcends the ideological divisions of the Court. Indeed, conservatives like Roberts and Brett Kavanaugh are expected to abide by the rest of the law. Thus, despite the pictures at the hearing, the picture looks solid for the ACA even with a Judge Barrett at the court. In fact, no one knows how Barrett would vote on the matter of separability.
The more important decision at the hearing is that some senators are now invoking the right to vote against a candidate based on their expected vote on this pending case. It will be a uniquely ironic moment as it was Ginsburg who refused to answer questions about pending or anticipated cases as inappropriate and unethical Senate investigations. It became known as the “Ginsburg Rule”. We may now have Barrett’s rule that a nomination can be turned down without such assurances.
Barrett’s Rule would allow for not only the packing of a dish, but also the packing of the dish with guaranteed ideological drones. It’s court wrapping with no excuse. Like our current policy, it would finally remove any nuance or beauty. In the worst case scenario, like Congress, the court would be subjected to raw and brutal policies.
Jonathan Turley is Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley