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Confirmation hearings for Amy Coney Barrett, President Trump’s nominee for the Supreme Court, began Monday. With just three weeks until Election Day, the debate over the nomination has been as much about whether it’s appropriate for Republicans to fill the seat at this time, as it has been about Barrett’s qualifications.
Despite any partisan fireworks that might occur, the hearings may prove to be more or less a formality. Republicans appear to have the votes to confirm Barrett, and Democrats are essentially helpless to stop them.
Once confirmed, Barrett will fill the seat previously held by liberal icon Ruth Bader Ginsburg. This would create a 6-3 conservative majority and represent one of the most significant ideological shifts for the court in modern American history. Though she has declined to say how she would rule in hypothetical cases, legal experts say Barrett could be the determining vote in decisions on abortion rights, gun control, health care, environmental laws and other issues.
Control of the courts has long been a priority for the GOP. Adding Barrett to the Supreme Court would be the culmination of a decades-long effort to infuse the federal judiciary with conservative-leaning legal minds. But doing so will mean going against public opinion. A majority of Americans say the seat should be filled by whomever wins the presidential election in November.
Why there’s debate
The question for Republicans is whether the benefits of appointing a potentially transformational Supreme Court justice outweigh any political repercussions. Senate Majority Leader Mitch McConnell clearly sees an advantage in moving forward with the confirmation, but some political analysts suggest the GOP may ultimately regret the decision. The most immediate risk for Republicans is that the move may hurt them at the ballot box. Democratic voters have historically placed less emphasis on the Supreme Court than conservatives, but that enthusiasm gap has closed after contentious confirmation fights over Trump’s two other appointees — Neil Gorsuch and Brett Kavanaugh. Republicans rushing to appoint another nominee could shift turnout just enough to sink the GOP's hopes of retaining the Senate and Trump’s chance at reelection.
There’s also the risk that McConnell’s unapologetic gamesmanship may motivate Democrats, who have been reluctant to consider major court reforms in the past, to respond in kind. The idea of court packing — adding seats to the court to offset the conservative majority — has gained steam in recent weeks. If Democrats take both houses of Congress and win the White House, they could pass legislation that undoes some of the decisions Republicans are hoping to get out of a 6-3 conservative court.
Even considering these risks, confirming Barrett is still a win for Republicans, some argue. A strong conservative majority could help deliver legal victories that have been on the GOP wish list for decades and prevent Democrats from enacting their progressive policy agenda. Barrett may also be a deciding vote in future rulings on voting rights and campaign finance that benefit Republicans. In the case of a contested election, a 6-3 conservative court could help Trump remain in office for another four years, as well.
Barrett’s nomination must first be approved by the Senate Judiciary Committee before moving to a final vote before the full Senate. Barring any surprise defections, Republicans are poised to confirm Barrett to the Supreme Court as early as the last week of October.
Voter backlash could overwhelm any benefits another conservative justice brings
“The self-interested reason Republicans shouldn’t confirm Trump’s nominee in short order is that it will create a potential backlash that could have disastrous effects for Republicans.” — Noah Feldman, Bloomberg
Democrats may be motivated to make major changes to the court
“Under McConnell, the Senate has been run according to a simple principle: Parties should use as much power as they have to achieve the outcomes they desire. … It is a dramatic transformation of the Senate as an institution, with reverberations McConnell cannot control and that his party may come to regret. Indeed, McConnell’s single most profound effect on the Senate may be what he convinces Democrats to do in response to his machinations.” — Ezra Klein, Vox
Republicans are overplaying their hand by inviting another court fight
“For years, Republicans have dined out on Supreme Court battles. But Judge Amy Coney Barrett's confirmation fight threatens not only to starve them of a tried-and-true political weapon, but to hand that weapon to Democrats.” — Jonathan Allen, NBC News
Confirming Barrett may cost the GOP control of the Senate
“The prospect of Republican senators marching lock-step to confirm a justice — picked precisely because of her hostility to the Affordable Care Act and legal abortion — should help Democrats boost their already commanding position in Senate races.” — Jennifer Rubin, Washington Post
Democrats have a lot more to gain from the court being a central issue
“As for the party bases, the Republican base (1) already votes, and (2) has been energized about Supreme Court appointments for a long time. It’s unlikely that the Ginsburg replacement will increase their turnout much. On the Democratic side, it’s just the opposite.” — Kevin Drum, Mother Jones
The nomination fight won’t have much of an effect on the election
“This kind of thing does indeed fuel cynicism, and rightly so. People feel that this is what politicians do. But will enough feel this way to affect the election? No. It will only move a few people at the margins.” — Political scientist Laura Stoker to San Francisco Chronicle
Barrett could play a role in awarding Trump a second presidential term
“So Donald Trump is looking for a Supreme Court nominee who will, in a quite plausible Bush v. Gore–like scenario, automatically rule for him, nullifying as many Democratic ballots as necessary to ensure that he receives another term. That is this man’s stated public goal.” — Mark Joseph Stern, Slate
Not filling the seat may cost the GOP voters in the long term
“Politics has to be about more than always situating the party for the next win. Occasionally you’re going to have to fulfill promises. These justices fulfill the wishes of the vast majority of the Right.” — David Harsanyi, National Review
A 6-3 conservative court could make it impossible for Democrats to enact their agenda
“A Supreme Court with six conservative justices would be far less likely to rule in favor of future Democratic policy proposals, such as Medicare for All or the Green New Deal, and far more likely to uphold conservative ones.” — Matt Ford, New Republic
Barrett would help steer the court back toward its intended purpose
“Democrats’ unpleasantness reflects their misperception or mischaracterization of the Supreme Court and its purpose. … They see it as a supreme council to decide cultural issues in their favor when the public does not agree with them, and to block laws and policies they don’t like.” — Editorial, Washington Examiner
Republicans should take any wins they can get before they lose power
“Conservatives who once considered Trump’s success in the Nov. 3 election paramount to their goal of dismantling social progressivism have quietly shifted their focus to the lightning-fast Supreme Court confirmation fight. In Barrett … the president’s traditionalist supporters see an easier short-term path to building a bulwark against the cultural shifts they oppose, and one that’s more likely to yield long-term results.” — Gabby Orr, Politico
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