Amy Coney Barrett was sworn in as the newest Supreme Court justice last Tuesday, Oct. 27, the third to be appointed under the Trump administration. Her hasty nomination was met with fierce disapproval from political figures and commentators, with many claiming it was improper to be holding hearings while an election was underway and a purportedly crucial COVID-19 stimulus package was under consideration.
What was widely anticipated to be a troubled and difficult confirmation process was actually swift and easy. Senate Judiciary Committee Chairman Lindsay Graham’s rather frank prediction at the beginning of hearings, that, “all the Republicans will vote yes, all the Democrats will vote no,” was proven right with the vote going 52-48 in the Republicans’ favor.
What this says about the state and integrity of the court is up to interpretation. It’s no secret that Congress has been a two-party numbers game for decades, but the Supreme Court is meant to be the last bastion of unbiased order in lawmaking. Is this possible when our potential judges are nominated and sworn in within the confines of a rigidly partisan government?
“Appointments are now made expressly because a candidate has demonstrated allegiance to a specific political/legal ideology, not because of allegiance to an impartial rule of law,” claims Michael Benza, senior instructor at CWRU School of Law. Benza paints a rather bleak picture for the future of our legal system: “The standing of the Court as a fair, impartial, and apolitical decision maker is already under siege (and maybe already destroyed).”
Jonathan Adler, the Johan Verheij memorial professor of law, concurs that the confirmation process is a biased affair, stating that “judicial confirmations have become a partisan exercise.” That being said, Verheij sees no issue with the way in which judges are brought up for nomination: “The time when highly qualified nominees could be confirmed unanimously or near unanimously [is past] … [Trump] has had a higher percentage of his judicial nominees rated ‘well-qualified’ by the ABA than his predecessors.”
Indeed, Barrett was given the rating of “well-qualified,” and Adler concurs: “Judge Barrett’s record on the Seventh Circuit is that of a judge who makes every effort to follow the law where it leads, without regard for whether she likes the result. I have no reason to believe her behavior on the Supreme Court would be any different.”
Benza, however, has doubts regarding her qualifications: “One issue with her appointment is that she really has done nothing as a lawyer or as a judge. She practiced law for two years as an associate in a law firm which means she never represented a person/client … prosecuted a criminal case, defended a person accused of a crime, litigated an issue in a courtroom, etc.”
He continues, “[but] she has written articles, given speeches, taught courses, etc. that clearly express her views on the law, specific legal questions and endeared herself to the Federalist Society and Republicans. In that regard, she was clearly nominated and confirmed as part of an agenda.”
The Federalist Society, a highly influential legal organization, was also an issue on the table at hearing. Sen. Sheldon Whitehouse, D-R.I., criticized what he perceives as their outsized influence in judicial nominations. The Federalist Society, as Benza claims, “was formed with the express mandate to install conservative lawyers into universities, law firms and judicial offices in order to further the conservative legal agenda.”
Be that as it may, Adler sees no motive to question their role in appointments beyond partisan bias: “Sen. Whitehouse sees conspiracies to his right, but business as usual to his left. All [administrations] seek the input from outside groups on prospective judicial nominations, as they should. The judicial picks made should be evaluated on their merits … [Trump’s] Supreme Court picks have all been individuals who we would have expected any Republican President to consider.”
During her hearing, Barrett routinely dodged questions regarding specific policies, which drew ire from commentators, but is this strategy anything out of the ordinary?
“It is totally in [accordance] with the practice of prior nominees and is entirely appropriate,” says Adler, who sees pointed intent in the questions from Senate Democrats during confirmation hearings.
“Most of the questions trying to draw her out on various issues are not asked in good faith,” Adler continued, also saying that “They are not efforts to elucidate information, but rather to put the nominee in an uncomfortable position or score political points.” Benza then said that “her refusal to say what she thinks has become the norm, even though everyone knows exactly what she thinks,” but has serious doubts regarding the potential of confirmation hearings to be informative anyway.
“The entire [process] has become a farce and a political charade. No one expects any real questions or real answers, but simply a political theater to get through.”
Among the most pushed issues at the hearings was that of the Affordable Care Act (ACA), with numerous Senate Democrats voicing concern over its future if Barrett were to be sworn in. Benza believes these concerns are warranted: “The charade of the hearings in which she proclaimed no opinion is just that—a charade. She clearly holds political and legal views that will put her against the ACA, as well as many other things … that is why she was put on the Court. She may not have been asked directly ‘will you kill the ACA?’ just as she may not have been asked directly ‘will you overturn Roe?’ but there is no need to ask those questions.”
Adler, however, believes such concerns were merely fodder, contending that Barrett’s confirmation, “Will not mean anything for the Affordable Care Act … the Court will not strike down the ACA, and hers is unlikely to be the deciding vote.”
Beyond any question of the legitimacy of her nomination or her qualifications, both Adler and Benza say Barrett’s rushed appointment was tactical on the president and Senate Republicans’ parts. “When the Senate and the White House are in the same hands, the Senate generally tries to confirm judicial nominees quickly. Of course it’s strategic,” says Adler. On the question of whether it’s appropriate to hold a confirmation hearing in the middle of the election, Benza believes it’s orderly conduct, but suggests it may display a lack of propriety with respect to the austerity and importance of the court itself.
“The Republicans control the Senate and the White House and know that control will end at some point (it always does), but stacking the court with ‘their’ people ensures control of the judiciary for many years/decades.”
Jonathan Entin, the David L. Brennan professor emeritus at the CWRU School of Law, formerly worked as a legal clerk for the late Justice Ruth Bader Ginsburg and was an associate of hers throughout her career. In consideration of that relationship, he chose not to comment on Barrett’s confirmation hearings, but offered this statement: “I have been writing about the confirmation process for nearly 30 years. That process, for both Supreme Court justices and judges of the lower federal courts, has been dysfunctional for a long time. Each party has its own version of how things got this way. The challenge is to figure out a way to move forward in a positive fashion. I can’t say what the likelihood of this happening might be, but I’m not optimistic about the short term at least. The dysfunction I referred to reflects deeper problems in our politics, but that is a subject for [a larger] conversation.”
Numerous election-related lawsuits are expected in the next few weeks, with Justice Barrett’s role in these matters taking center stage. It is popularly believed, after some of President Trump’s, as Adler put it, “intemperate and inappropriate comments about why he wanted a justice confirmed before the election,” that Barrett may be poised to side with Trump on any matters regarding voting and the transfer of power.
In the spirit of these comments, President Trump has already accused the Supreme Court of aiding Biden in the election by ruling in favor of Democrats when state Republicans contested extended deadlines in Pennsylvania and North Carolina, two important swing states (and two cases in which Barrett did not participate), and claims that the Supreme Court would be dooming itself were it to decide the election in Biden’s favor. It is unclear at this point whether Justice Barrett will recuse herself in cases arising from election results.
Correction: Originally, this article attributed the quote “Most of the questions trying to draw her out on various issues are not asked in good faith … They are not efforts to elucidate information, but rather to put the nominee in an uncomfortable position or score political points.” to Michael Benza. The quote was actually said by Jonathan Adler.