A tainted nomination proceeds
Judge Amy Coney Barrett’s accession to the Supreme Court barreled forward in a cloud of partisanship and pestilence Monday. Introduced as President Trump’s nominee on the brink of his coronavirus-haunted reelection bid in what turned out to be a super-spreading event, Barrett appeared before a Senate Judiciary Committee hobbled by the contagion, its convalescing and quarantining members a testament to the farcically precipitous process.
The hearing boded ill for a judiciary buffeted by the forces that have diminished the other two branches of government. Little can stop the Senate’s Republican majority from forcing Barrett onto the court in what could be the waning days of its power and the president’s, but if this kangaroo court nomination succeeds in advancing partisan goals, the party and the court are likely to pay the price.
Judiciary Chairman Lindsey Graham opened the hearing by all but declaring it a charade, saying its purpose was not to consider Barrett’s nomination but “to confirm” it. Graham said the proceedings are “probably not about persuading each other”: “All the Republicans will vote yes; all the Democrats will vote no.”
To behold such statesmanship is to understand why the veteran South Carolina Republican is fighting for his political life against a Democrat in a rubyred state. But the senator left himself scant opportunity to pretend to any coherent principle. Yes, Barrett is a wellqualified nominee, but so was Merrick Garland.
Four long years ago, when Graham and his colleagues were refusing even to consider Barack Obama’s Supreme Court nomination of Judge Garland on the ground that the presidential election was a mere eight months away, Graham vowed that if a vacancy occurred in 2020, “I want you to use my words against me. ... You can say Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.”
Last month, however, when Justice Ruth Bader Ginsburg died, it took the senator a day to proclaim his own precedent void with less than two months left until the election and the nominee still unknown.
A few of Graham’s Republican colleagues ventured to fashion a new principle Monday, arguing that different rules apply when the Senate and presidency are controlled by the same party. But it was just another way of acknowledging a raw exercise of partisan power.
They have that power for the time being, but the spectacle won’t improve their prospects of retaining it. With Graham and several other Republican incumbents in the midst of uncertain reelection efforts, their majority is threatened, and polls show most voters disapprove of a shotgun Supreme
Court confirmation.
Assuming Barrett’s confirmation proceeds according to its tight schedule, the court could be likelier to overturn abortion rights, favor Trump in a contested election or — as Democrats on the committee were keen to emphasize Monday — strike down the Affordable Care Act. Despite being duly enacted a decade ago, withstanding the worst intentions of congressional Republicans ever since, and surviving not one but two Supreme Court cases, the landmark health care reform will be before the justices again a week after the election.
The court’s conservative chief justice, John Roberts, has repeatedly saved the ACA, a Democratic president’s signature achievement, lest the court become even less distinguishable from the political branches. If Barrett enables the court’s right wing to abandon Roberts’ restraint, she will do more harm to the institution than her tainted nomination already has.