Yesterday, President Trump announced his nomination of Amy Coney Barrett to fill
the Supreme Court seat that has been open since Ruth Bader Ginsburg’s death
last week. As this is a major plot twist in what is already a bizarre year in
American politics, nearly every news site in the country is buzzing with
commentary. Hence my desire to add my own brief observations on Barrett’s
nomination.
1.
This Was Never About Election Years
Back in
2016, when Antonin Scalia died and Mitch McConnell announced that the
Republican Senate wouldn’t be considering Obama’s nomination of Merrick Garland
to replace him, he justified it on the grounds that Supreme Court vacancies
shouldn’t be filled during election years. Everybody with half a brain
suspected that the “McConnel Rule” wouldn’t last thirty minutes beyond the
moment that a Republican president got a vacancy during an election year.
My own
prediction, at the time, was that the new precedent that McConnel & Co.
were actually setting was that no justice should ever be confirmed under
divided government.
Well, if
Trump wins re-election but then loses the Senate in 2022 (as presidents in
their sixth years usually do) I will not be holding my breath and waiting for
the Democrats to vote on any of his Supreme Court nominations – or perhaps on
any judicial nominations at all – during his final two years in office.
2.
Barrett Was Trump’s Best Possible Choice
I am on the record criticizing President Trump for not picking a woman for his last
Supreme Court vacancy in the summer of 2018. Simply put, the absence of any female
conservatives from the Court makes it more likely for wishy-washy justices like
John Roberts to vote with the Left to avoid ending up on the wrong side of a
perceived battle-of-the-sexes. Well, Trump didn’t make that mistake this time
around.
And
that’s not even the beginning of the good things that there are to say about
Amy Coney Barrett. As a law professor at Notre Dame, she’s racked up a record
of promoting originalism far superior to what Kavanaugh or even Gorsuch had. She
is deeply religious and has seven (!) children, which is exactly the sort of
countercultural thing that signals that a person fully embraces old-fashioned
values rather than merely flirting with them from time to time. (Antonin Scalia,
for that matter, had nine children.)
3.
The Democrats Will Have To Be More Creative
Than Last Time
Back in
1987, Democrats could attack Robert Bork on ideological grounds because they
had a majority in the Senate. In 2018, when Brett Kavanaugh went before a
Republican Senate, the Democrats had to try something different. So they got a
woman who had known Kavanaugh as a teenager to come forward and make
thin-as-vapor rape allegations, and then get all hysterical about how hurtful
it was when Kavanaugh insisted that the senators shouldn’t believe her.
But with
a female nominee, that particular line of attack will be a lot harder. It is remotely
possible that the Democrats will try to derail Barrett’s nomination by finding
somebody to claim that, early in her career, she had sex with an underage boy. But what
is more likely is that they will just try to paint her as a dangerous religious
fanatic.
Barrett
is a Roman Catholic, but she also belongs to an interchurch charismatic association
called People of Praise. Its members believe in the gifts of prophecy
and healing, and they commit to live by traditional gender roles. (You can tell
that it isn’t too traditional by the fact that it has room for a woman
who chose a career as an appellate judge).
But you
can expect leftists to get apoplectic over People of Praise anyway, especially
since the association used to call its female officers “handmaids.” If you are
biblically literate, then you will be familiar with the passage in Luke 1 that
inspired this choice of title:
And Mary
said, Behold the handmaid of the Lord; be it unto me according to thy word.
Nevertheless,
most Americans aren’t biblically literate these days, and the fact that
religious men and women often use the language of servitude in describing their
relationship with God isn’t taken for the mundane fact of life that it once
was.
4.
This Is A Win For The Deplorables
Right
now, everybody on the Supreme Court is a graduate of either Harvard or Yale. And
all of them, with the exception of Clarence Thomas, grew up in wealthy
families, and lived most of their lives in wealthy counties in blue states. (Thomas
grew up as a dirt farmer in Georgia.)
The
justices are, again with the exception of Thomas, very strongly accultured in
America’s bicoastal ruling class. This is the reason why so many justices who are
supposed to be conservatives end up consistently voting to the left of the
Republican base that puts them into power.
If you analyze
the justices not by party, but by whom they hobnob with and whether or not they
grew up in comfortable circumstances, you do not get the usual conservative/liberal
breakdown; rather, you get Clarence Thomas versus everyone else. While the
other justices are, for the most part, opera lovers who go on expensive foreign
vacations, Thomas spends his summers driving around Middle America in an RV, overnighting
in Wal-Mart parking lots, and chatting with the Deplorables.
When
Donald Trump was elected President, a lot of his more optimistic supporters
looked forward to seeing him make the Court more diverse by adding people from non-coastal
states with alma maters other than Harvard or Yale. (You may not think that
getting your degree at Notre Dame makes you a Deplorable, but to a very large
percentage of America’s ruling elite, it does).
With
Gorsuch, Trump sort of fulfilled those expectations. While he was a Harvard
alumnus like most justices, he was from Colorado rather than a coastal state. And
his mother’s poor treatment at the hands of respectable Washington society when
she served as head of the EPA under Reagan left the younger Gorsuch with a sour
feeling toward said society. Kavanaugh, on the other hand, was born in
Washington DC and had always been comfortable there – not a promising trait!
But
Barrett is better than either. She was born in Louisiana, went to school in
Indiana, lived in Indiana for most of her adult life, gave birth to five
children, and adopted two more from Haiti.
This
alone does not prove that she will be a consistent conservative on the bench. After
all, power can corrupt anyone; Sandra Day O’Connor grew up on a ranch in
Arizona and ended up as a socially liberal swing-voter. But Barrett’s
background should still count in her favour.
5.
The Democrats Won’t Pack The Court
Some liberals,
having realized that the Democratic party is completely helpless to stop
Barrett’s confirmation, have started threatening to add new seats to the Supreme
Court if Biden wins in November, so as to move its balance back into safely
liberal territory.
I am not
opposed, in principle, to court-packing, because I see the ability of
Congress to engage in such tactics as a necessary – but alas, never used –
constitutional safeguard against dictatorship by committee. (For obvious
reasons, I am not in favour of the pro-dictatorship-by-committee party packing
the Court).
But right
now, it is all empty bluster. Even if they win the Presidency and all the close
Senate races, the Democrats will only have 50 or 51 senators to work with. That
just isn’t enough to get such a major reform through, even if they abolish the
filibuster, which is something they are also talking about doing. There are too
many Democrats who would get cold feet – people like Joe Manchin of West
Virginia, who has found himself stranded in Trump country and now must cling to
office by taking a centrist line on most issues.
6.
Abortion Rights Are Probably Here To Stay
Alarmist
Democrats and optimistic Republicans have been talking up the Ginsburg-Barrett
transition as a threat to Roe v. Wade. This is because Barrett is an almost-certain
vote to overturn that decision. But the trouble is that, like in 1992, there
are far too many moderate Republicans gumming things up.
Back
then, when the conservative bloc came closest to overturning Roe v. Wade
but still fell short by one vote, the Court had eight Republican
appointees. (To add to the irony, the lone Democrat, Byron White, was a
moderate who always voted against abortion rights).
The Court’s
conservatives failed to defederalize the abortion issue back then because most
Republican politicians do not care about abortion and only pay lip-service to
the pro-life movement. The result is that they nominate judges about whose
judicial philosophy they know little or nothing: people like O’Connor, Kennedy,
and Souter. Then they palm these appointments off as wins to their gullible
base.
The same
thing happened with John Roberts in 2005. In order to maintain his status as
leader of the Court’s conservatives, the new Chief Justice mostly followed the original
constitution for his first 12 or so years on the bench, then made a hard run to
the left just in time to step into Anthony Kennedy’s role as de facto
King of America.
In order
to keep Roe v. Wade in place after Barrett, the liberals will need to
pick off another Republican appointee. Barrett herself is not swingable; neither
is Thomas or, in all likelihood, Alito. I am optimistic about Gorsuch; I put
his odds at voting against abortion rights at 80 percent.
Kavanaugh
seems like the weak link; my guess is that there is only a 40 percent chance
that he will vote against abortion when it’s his turn to decide. Multiply out
those probabilities and you get a 32 percent chance that Roe v. Wade
will be overturned by the new six-justice Republican majority.
I sure
hope it happens, but I am not holding my breath. Trump chose well with Barrett,
and to a lesser extent with Gorsuch, but with Kavanaugh, he picked someone whose
beliefs were way too murky.
The sad
truth of the matter is that when you are trying to get people to divest
themselves of power voluntarily, you will almost always fail. That is what the
conservative movement has been doing with the Supreme Court for the last fifty
years or so, when it has, time after time, placed seemingly principled men (and
one woman) into a position of practically unlimited power and then crossed its
fingers in the hopes that the power wouldn’t corrupt them.
What we
needed after the abuses of the Warren and Burger Courts was radical reform; we didn’t
get it, and we have spent half a century dealing with the consequences. One
of those consequences is that the stakes of Supreme Court nominations are way
higher than they ought to be. Another is that, for conservatives, the
occasional win – like what they are about to get with Judge Barrett – is not
enough to offset the broader pattern of losses.