The Editorial Board, USA TODAY
Published 6:29 p.m. ET Sept. 26, 2020
Our View: A Supreme Court confirmation fight just 38 days from a presidential election, after denying Merrick Garland hearings in 2016, harms America.
If the choice, announced in the Rose Garden even before Ginsburg’s burial next week, was lacking in the reality-show suspense that surrounded Trump’s two previous Supreme Court picks, the outcome might well be the same: another conservative justice confirmed on a near party-line vote in the Senate following a contentious confirmation process, this one on the cusp of a presidential election.
It is particularly egregious that an institution once known as the world’s greatest deliberative body would attempt to rush through a Supreme Court nomination, even as it has been unable to pass another relief bill for the millions of Americans suffering because of the coronavirus pandemic.
Nine powerful justices
Supreme Court confirmations typically take time, and for good reason. Justices are arguably the nine most powerful people in government behind the president. They can serve for the rest of their lives, will never face voters, and routinely rule on deeply personal and immensely political matters.
In the past five years alone, the justices have told states that they could not deny marriage licenses to same-sex couples, but that they could gerrymander congressional and legislative districts to give one party an advantage. They added sexual orientation to matters covered by the Civil Rights Act. And they signed off on allowing states to collect sales taxes on internet purchases.
Any one of these decisions could be seen as being as consequential as any law passed during the same period. And, in the upcoming term, the justices are expected to decide once again on the fate of the Affordable Care Act, which is to say the ability of millions of Americans to buy health insurance in the midst of a pandemic. Abortion rights could well be on the line in the not too distant future.
Nominations and elections
For these reasons, it is important that the Senate asks a number of threshold questions before it even delves into the particulars of Judge Barrett, 48, who’s serving on the 7th Circuit Court of Appeals based in Chicago and whom Trump described as having “unsurpassed” qualifications.
First among the questions: Is it wise to pursue a heated confirmation fight just 38 days from an election? This is the closest nomination ever made to a U.S. presidential election. The prior record was Aug. 16, 1852, and the Senate did not act on that nomination.
Another question is whether it is possible to do the necessary due diligence on any candidate for the high court, one who could serve for decades, at the breakneck speed proposed by Senate Republicans, who are said to be eyeing a late-October confirmation vote.
Most important, is it fair for Republicans to hold open a vacancy for the better part of a year in 2016, when a Democrat was president — citing the pending presidential election as a rationale — and then do a 180-degree turn when a Republican makes a nomination?
Four years ago, Republicans were adamant in their determination to present their actions as principled. Senate Majority Leader Mitch McConnell said in a USA TODAY opinion piece that the Senate should hold up action on the nomination of Merrick Garland because “the American people deserve a voice in such a momentous decision.” Never mind that it was eight months before the election, and that Garland had sterling credentials.
Sen. Charles Grassley, of Iowa, then the chairman of the Senate Judiciary Committee, said similar things. And Sen. Lindsey Graham, of South Carolina, who was on the committee then and is now its chairman, was even more unequivocal. “I want you to use my words against me,” he said. “If there’s a Republican president in (elected) 2016 and a vacancy occurs in the last year of the first term, you can say: ‘Lindsey Graham said let’s let the next president, whoever it might be, make that nomination.’ ”
Senator, we’re using your words against you.
The answer to all of these questions — whether it is wise to have a confirmation battle in the home stretch of a critical presidential election, whether there is enough time before the election to give the choice sufficient scrutiny, and whether Republicans in charge of the Senate have any high ground to stand on — is no.
Judging Judge Amy Coney Barrett
Judge Barrett made an impressive debut Saturday, paying tribute to both Ginsburg and the late Antonin Scalia, the conservative justice whom Barrett described as a mentor. But if hearings are to begin soon, her record and “originalist” judicial philosophy deserve thorough exploration.
The American people ought to be able to look at their courts as autonomous arbiters of justice, not an extension of one party’s political apparatus. They ought to be able to see the system for filling vacancies as at least fair.
Attempting to ram through the nomination of Judge Barrett, after refusing to even consider an eminently qualified pick made by then-President Barack Obama, is a good way to undermine America’s faith in its courts.
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