Justice Amy Coney Barrett is the fifth woman to don a robe in the Supreme Court of the United States. In any other year, her confirmation would have been a very simple matter. But since 2016, nothing about SCOTUS justice nominations has been simple.
Really, this goes back to the nomination of Robert Bork. The Democrats decided that if they couldn't get rid of a nominee because he or she was unqualified, they'd defame him. What was done to judge Bork was wrong. He was eminently qualified, but the ultra-hypocrite Ted Kennedy distorted the judge's record so badly that public opinion was swayed enough to make confirmation of the judge untenable. Judge Clarence Thomas's nomination survived allegations of improprieties he committed against Anita Hill.
But those fights pale in comparison to what was done to Justice Brett Kavanaugh. A judge with impeccable credentials, he was subjected to a character assassination that judges Bork and Thomas are thankful to have avoided. Unsubstantiated allegations of gang rape and other sordid behavior created a firestorm of protest beyond legal circles. Women's groups insisted that the nomination be withdrawn by the POTUS; others threatened to impeach him once his nomination was confirmed by the Senate. Dire warnings were predicted about his future judicial rulings -- none of which have come to pass -- that only served to increase the fervor of the groups opposed to Justice Kavanaugh's confirmation.
When Justice Ruth Bader Ginsburg -- the darling of the Left -- died in September, the Left's propaganda machine revved up, beseeching the POTUS and Republicans to not nominate or confirm a candidate so close to the election. But these requests came with a twist: There weren't the usual smear tactics, but a plea to reason.
Back in 2016, then-President Obama nominated Judge Merrick Garland to replace the recently departed Justice Antonin Scalia some ten months before the general election. Republicans, hopeful Hilary Clinton would not be elected, held off holding hearings so that a Republican president could nominate someone more to their liking. For my money, Judge Garland was eminently qualified and not the least bit objectionable. As a judge sitting on the District of Columbia Circuit Court, he'd authored an opinion striking down one of then-President Obama's pet projects. The Republican move was nothing more than naked, political power, because the Republicans were in the majority in the Senate. I thought at the time this move would be one the Republicans would regret.
The attack on Justice Kavanaugh was way out of proportion to what the Republicans did to Merrick Garland's nomination. There was a backlash when it was discovered that there was no evidence supporting the allegations against him. The Democrats in the Senate and their supporters got a well-deserved black eye publicly. But with Justice Ginsburg's death, they were on the horns of a dilemma.
Should the POTUS be successful in nominating and then having confirmed a judge to replace Justice Ginsburg, that would give the POTUS three appointments to the SCOTUS, a third of the bench. Given how the Democrats attacked Justice Kavanaugh, they couldn't afford a repeat of that debacle. What happened next only compounded their problem.
The POTUS nominated Judge Amy Coney Barrett of the Seventh Circuit to replace Justice Ginsburg. Not only was she diametrically opposite to Justice Ginsburg when it came to applying the Constitution, she had been attacked by the Senate during her confirmation hearings to the Circuit Court. Notoriously, Senator Dianne Feinberg made the judge's religion, Catholicism, an issue, contrary to Article VI that holds that no religious test for public office be given. So to attack Judge Barrett would require another tack.
During her confirmation hearings, Justice Barrett was subjected to repeated questions about Roe v. Wade, Obamacare and sundry other topics despite the fact that she adopted, ironically, Justice Ginsburg's position that she would not comment on precedent or how she would rule. The Democratic senators brought in blown-up photographs of people who had either suffered due to a lack of health insurance or who had benefitted from Obamacare, which led one pundit to refer to the hearings as the Milk Carton Hearings, an allusion to the practice of putting the pictures of missing children on milk cartons.
Democrats, not without reason, also appealed to the fact that the Republicans had withheld Judge Garland's nomination from consideration despite the fact it was made ten months, not two months, before the general election. The problem with that argument is that, again ironically, Justice Ginsburg noted that a president was elected for a four year term, not a three year and ten months term. Dirty pool or not, the POTUS was within his rights to nominate Judge Barrett, and the Senate, controlled by the Republicans, could fast track the confirmation process to get Judge Barrett confirmed before the election.
Calls for the judge to recuse herself in the event there are problems with election results were voiced, but they fell on deaf ears. Recusal standards do not contemplate such an eventuality. But that didn't stop the Left.
Justice Barrett is an eminently qualified jurist. She doesn't have an extensive record as an attorney, but neither did Justice Kagan, and that didn't bother anyone. The politics of SCOTUS nominations is ratcheting up, and it doesn't look to settle down any time soon. The judicial branch is supposed to be the one non-political branch of government. Now it's being used as a pawn. Talk of admitting Puerto Rico and the District of Columbia as states, packing the court or changing how judges sit, eliminating the filibuster and other machinations is all the rage.
I fret for our judiciary.
(c) 2020 The Truxton Spangler Chronicles
