SCOTUS has become the biggest buzzword of the past two weeks, but prior to September 23rd, very few of us had ever read let alone discussed the abbreviation. Established in 1790, the Supreme Court of the United States (SCOTUS) was created to act as the legal arm of the federal government, and has come to represent the law of the land. Currently, SCOTUS has risen in the public conscience due to the passing of Justice Ruth Bader Ginsberg on September 18th. Justice Ginsberg’s death created an opening in the court, an opening that had previously been filled by the liberal and notorious RBG. On September 23rd, President Donald Trump nominated Amy Coney Barrett to fill this opening. It was this nomination that has created the massive political fallout that we’ve been witnessing in the past few weeks.
So, here’s how general Supreme Court nomination works:
The actual process of nominating someone for the Supreme Court is simple. The president selects a nominee and that nominee is then voted on by the Senate. Generally, the Senate Judiciary Committee holds a hearing with the nominee and then moves to approve or deny the nomination on a committee level. If approved, the nominee is voted on by the whole Senate. A simple majority (51 of the 100 votes) is required to confirm the nomination. If the simple majority is obtained, the nominee is then appointed to the court. The appointment lasts for life, though some members have retired due to age or health reasons.
Here’s why this nomination is such a big deal:
We are currently in an election year, with Election Day less than two weeks away. The Senate Judiciary Committee voted on Thursday, October 22nd to approve the nomination of Amy Coney Barrett and the entire Senate is expected to vote the week of October 26th. This will place the vote for Barrett only a week before election day, making it the closest nomination and confirmation of a Supreme Court justice to an election ever. Given this timeframe, there has been lots of talk about “precedent” over the past few weeks. Specifically, Democrats have criticized the nomination because it goes against the precedent set by historical Supreme Court nominations and Republicans have defended their actions because there have been many court nominations during election years in the past.
It’s important to note, and Democrats have been quick to remember, that when Justice Antonin Scalia died in 2016, Senate Republicans refused to nominate President Obama’s nominee Merrick Garland; they believed that it should be determined by the president put in place later that year. Obama nominated Garland on March 16th of that election year, nearly eight months before the election. Trump nominated Barrett a mere month and a half before this one.
The primary criticisms of this nomination process is that Republicans are going against the very precedent they set and were prepared to defend in 2016, and that this nomination is occurring during an already occurring election. The nomination of Merrick Garland and of many other candidates who were approved did happen during an election year, but at that time, ballots were not cast and people were not voting. When Amy Coney Barrett was nominated, however, the 2020 election was already actively occurring. With many people casting mail in ballots and many more using early voting sites, over 47 million votes have already been cast in this election. Many of the Senators playing a role in this confirmation and, of course, the President who created the nomination, have already had votes cast against them. This means that the people’s voices are not being heard in this court nomination, because the possible future president or future senators that they are voting for are not being given a say. As an act of protest, the Democrat members of the Senate Judiciary Committee boycotted the committee’s vote to approve Barrett’s nomination. Senator Chuck Schumer told the press that “Democrats will not lend a single ounce of legitimacy to this sham vote in the Judiciary Committee,” that by walking out of the vote, they were “voting with their feet.” The hope was to delegitimize the approval of Barrett’s nomination because they did not have the votes to stop it.
This protest highlights the increasing politicization of the court and its nominees. Antonin Scalia (Amy Coney Barrett’s mentor) and Justice Ruth Bader Ginsberg (who Amy Coney Barrett is replacing), were both confirmed with a margin of 98 to 0 and 96 to 3, respectively. Scalia and Ginsberg represented opposite ends of the political spectrum, but were still confirmed with a nonpartisan vote. This stands in stark contrast to the more recent nominations and confirmations of Neil Gorsuch and Brett Kavanaugh, who were confirmed almost exactly along party lines, with votes of 54-45 and 50-48.
The transition, especially in this nomination, is rooted in the important role the court plays in hearing major political cases. The court is supposed to be non-partisan, as Barrett has claimed to be with regards to the law, but the political beliefs of the Justices influence the ways they read the laws and the decisions they make. The increasing division of votes in the Senate indicates that Senators see the Supreme Court as another instrument to make or break their policies. If Barrett is confirmed, she will shift the court to lean conservative, 6-3. With policies such as the Affordable Care Act going to trial, a conservative leaning court could have serious repercussions for the liberal policies that many of us rely upon.
But why is Amy Coney Barrett specifically such a big deal?
Many of the aforementioned concerns about the political leanings of the court and of the nomination of Barrett during an election are only heightened by the actual personhood of Amy Coney Barrett. Senator Lindsey Graham said of Barrett that “This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology, and she is going to the court.” A mother of seven children, a professor of law at Notre Dame University, and a current federal judge, Barrett fulfills for many women the image of feminism today: she is able to work and be a mother, be smart and professional and kind and caring. However, for many others, Barrett may act as the antithesis to feminist and leftist values due to her political and legal beliefs if she is confirmed. At age 48, Barrett would become the youngest member of the current court and would therefore serve as a justice for decades. Her beliefs, therefore, are likely to influence American law for the near future and beyond.
According to an analysis by The New York Times of Barrett’s legal record, she had consistently sided with conservative law and interpretation. A legal clerk to late Justice Antonin Scalia, Barrett employs a similar conservative jurisprudence when interpreting the law. She reads the Constitution as she believes the authors intended, but while this ‘originalism’ led Scalia to certain liberal rulings, the analysis thinks a similar result is unlikely from Barrett. In topics ranging from gun rights to abortion to health care, Barrett has voted in favor of conservative values. Her confirmation did little to calm the fears that many Democrats have that Barrett will play an important role in taking down the Affordable Care Act and Roe v. Wade, as she refused to answer any questions about her personal beliefs or her interpretation of the law. Importantly, she also did not provide clear answers about whether or not she would recuse herself from a vote if the upcoming presidential race has a contentious result.
Interestingly, many people who know Barrett have no qualms with her personhood. Eli Dueker, a professor of microbiology at Bard College and a former sorority sister to Barrett remembered her as “whip-smart and incredibly kind.” Some of her students at Notre Dame told the BBC that she was a popular professor, that she was “collegial, civil, fair-minded, and intellectually sharp.” However, these approvals of Barrett as a person do little to quench their disapproval of her nomination as a Justice. Her student said that even though she liked Barrett as a professor, “I do not agree with her ideologies at all. I don’t think she would be good for this country and the Supreme Court.” Dueker explained that his qualm with Barrett is not about “Amy Coney Barrett personally, who is probably still that sweet, whip-smart person I knew in the early 90’s,” but has more to do with the idea of a Judge Barrett.
“I reject the idea of a Judge Coney Barrett, whose views undermine the health and safety of others, having a lifetime sway on the Supreme Court stage. I reject what that will mean for my future, for the future of women, for the future of my daughters, for the future of men, and really for the future of our entire country. And I reject a confirmation process that is happening this late in the presidential contest — while votes are already being cast across the country.”
Dueker’s rejection of Barrett puts into clear and poetic terms the many concerns that Americans have about the nomination and confirmation of a Judge Amy Coney Barrett. Her nomination has set into motion an increasing politicization of the Supreme Court, a deepening of the division between conservative and liberals, and bone-deep fear for the protection of the basic rights we pride ourselves upon as Americans.
The Dissonance 