USA TODAY International Edition
Nominating Barrett is not court packing
Democrats bring raw politics to court vote
During her confirmation hearings, Judge Amy Coney Barrett was surrounded by huge pictures of sick individuals. One would think that Barrett was being confronted with the faces of her victims. The pictures were meant to pressure Barrett to either satisfy senators that she would vote against an Affordable Care Act challenge or they would vote against her confirmation.
The images captured an important message: Senators had broken free from any pretense of principle in reviewing the qualifications of a Supreme Court nominee. Indeed, many are about to create a new rule, the “Barrett Rule,” allowing conditional voting.
There has long been debate over the legitimate grounds for opposing a Supreme Court nominee. While senators can vote under the Constitution for any reason at all, for most of our history, senators followed a rule of senatorial deference that held disagreement with a nominee’s jurisprudential views was not a basis to oppose confirmation.
A president was viewed as constitutionally entitled to appoint jurists reflecting his own legal viewpoint. The primary basis for voting against a nominee was on the lack of qualifications or some disqualifying personal or professional controversy.
Politics by another means
Members began to chafe at the limitations of this principle in the second half of the 20th century. With abortion, desegregation and other hot- button issues, confirmations became politics by another means. Senators became more open about voting against nominees solely on the basis of their expected votes. This trend was accelerated in October 1987 in the confirmation hearing of Judge Robert Bork, presided over by a senator from Delaware named Joe Biden. Bork was labeled “outside of the mainstream” and rejected in a process that is now called “Borking.”
Democratic members have struggled with changing rationales for voting against Barrett, who has impeccable credentials as an accomplished academic and respected jurist.
Sen. Chris Coons claimed the nomination “constitutes court packing.” Both Biden and Sen. Kamala Harris referred to nominating conservatives as court packing, while refusing to tell voters whether they will move to pack the Supreme Court if the Democrats retake both the Senate and the White House ( a proposal once denounced by Justice Ruth Bader Ginsburg herself ). Insisting that Barrett’s nomination is court packing allows Coons and others to vote against her without the need to consider her actual qualifications.
Court packing is the expansion of the court to create a dominant ideological majority. Biden once denounced Franklin Delano Roosevelt’s proposal to add seats to the court just to create a majority as “a bonehead idea ... a terrible, terrible mistake.”
Filling a vacancy on the Supreme Court is not court packing under any plausible definition. Otherwise, anytime you disagree with the choices of a president, it would be court packing despite leaving the court the same size.
With little traction on the packing pitch, senators were left with a rare moment of clarity. Sen. Cory Booker captured it best when, without waiting to hear from Barrett, Booker announced that he would vote against her because she might vote against the Affordable Care Act in the upcoming case California v. Texas. The suggestion is that, after an election, Democrats hoped to nominate someone who clearly supports the ACA.
ACB and the ACA
Thirty- three years after the Bork hearing, we have now reached the Rubicon of confirmation politics. Senators will oppose Barrett because of her expected votes on cases.
In reality, the ACA is unlikely to be struck down. The court may uphold the lower court in declaring the individual mandate of the original ACA to be unconstitutional, but the real issue is whether that provision can be “severed” from the rest of the statute. Most legal experts believe that the court has a clear majority favoring severance and preserving the rest of the act.
The question before the court cuts across the court’s ideological divisions. Indeed, conservatives like Justice Brett Kavanaugh are expected to uphold the rest of the law. Thus, the picture for the ACA looks solid even with a Justice Barrett on the court; and no one knows how Barrett would vote on severability.
The more important decision in the hearing is that senators are now invoking the right to vote against a nominee on the basis of her expected vote on a pending case. It will be a uniquely ironic moment since it was Ginsburg who refused to answer questions on pending or expected cases as improper and unethical inquiries by the Senate. It became known as the “Ginsburg Rule.” We may now have the “Barrett Rule,” where a nomination can be rejected without such assurances.
The “Barrett Rule” would allow for the packing of the court with guaranteed ideological drones. It is court packing without any pretense. Like our current politics, it would finally strip away any nuance or nicety. The court, like Congress, would become subject to raw and brutal politics at its very worst.
WANT TO COMMENT? Have Your Say at letters@ usatoday. com, @ usatodayopinion on Twitter and facebook. com/ usatodayopinion. Comments are edited for length and clarity. Content submitted to USA TODAY may appear in print, digital or other forms. For letters, include name, address and phone number. Letters may be mailed to 7950 Jones Branch Drive, McLean, VA, 22108.