Hitchhiker's Guide to Confirmation

So many things will be said about President Trump’s appointment of Amy Coney Barrett to the Supreme Court of the United States in the coming weeks, it might be interesting to have some insight into what is true and what is not. Undoubtedly, most of what we hear will be nonsense.

The biggest truth, speaking as a liberal, is that this nomination and probable confirmation is not a good thing. Barrett is a staunch textualist and originalist, in the mold of her mentor, former Justice Antonin Scalia. She is brilliant and highly qualified, but she is likely to make decisions that will erode Roe vs. Wade and possibly overturn the Affordable Care Act. It is a terrible situation, but one which clearly demonstrates the ramifications of losing elections.

We did not need to be in this situation. Seven years ago, Ruth Bader Ginsberg was eighty years old and in poor health. She could have retired from the Court, and President Obama could easily have appointed and confirmed a like-minded justice. The balance would have been maintained. She loved everything about her life on the Court and made a conscious decision and gamble to go out swinging. She did so much for women in her life, from my personal perspective, she deserved to do exactly what she did, but decisions like that have potentially catastrophic consequences. In all likelihood, the Court will now turn to a six-three conservative majority and our entire political world will noticeably shift to the right.

We do not have much with which to mount a defense and the lengths we go to challenge this nomination could erode our chances for favorable outcomes on November 3rd. No matter how you look at it, we are not in a good spot.

It is absolutely true, that the Republicans are being terribly hypocritical. In 2016, when President Obama nominated Judge Merrick Garland to the Court, they boldly shouted to, “let the people decide!” It was a good political argument, but it was never more than a good excuse. To his credit, President Obama nominated Garland, a center-right jurist, in an attempt to return to the days of more non-ideological appointments. The Republicans blocked him in a clear gamble to get an ideological-right appointment with a Trump victory. They really did get lucky. Had they not, it’s likely they would have switched gears and tried to push Garland through to the Court before inauguration, rather than risk a more ideological appointment from Clinton. But it’s also likely, Clinton would have had Garland’s nomination pulled in favor of a more ideologically-left nominee. I think byzantine is the word you’re looking for.

Historically, politics did not play as dramatic a role in Supreme Court nominations as it does today. It’s remarkable how many nominees were confirmed simply by a voice vote in the old days. Over the years, there were nominations that had opposition, mostly because they were viewed as too political or would upset the balance in one way or another. Even Thurgood Marshall was confirmed by a vote of 69 to 11 in 1967. But, beginning with Richard Nixon, the process began to get more political and more ideological. Since then, the more the Republicans have pushed ideological nominees, the more we have tried to resist them. Even so, Kennedy, Stevens, O’Connor and Scalia were all confirmed unanimously.

Today, there is no question that both sides are locked into ruthless ideological warfare and all pretense is gone. The Republicans will push through Barrett’s nomination before the election because they can, and it is purely dishonest partisanship to suggest that we would not do the same thing were the roles reversed. It is not a good thing, but it is where we are.

My biggest concern is that we will do something so over-the-top in opposing the Barrett nomination that it will impact negatively on the election. There is no question that we lost Senate seats, because of the audacious way we attacked Brett Kavanaugh. We have to be careful this time around. We have too much to lose. Calls to “pack the court” or “impeach” the President are exactly what I'm talking about when I warn of going too far. A serious attempt to do either would only hurt our popular support.

Judge Barrett is a mother of seven, including two adopted special needs, Black children. She is clearly a very good person and will appear so to almost everyone. Going after her personally, is a very dangerous proposition. However, she does have some vulnerability given her membership in the “People of Praise” religious sect. These folks are not mainstream Catholics by any stretch. They are opposed to gay rights, abortion and marriage equality, meaning the man is the boss. Being very respectful, we need to explore these beliefs. It is unlikely she will answer questions in a way that will make her appear as outlandish as may be the case, but the challenge for us is to not appear as though we are being critical of her for her religious beliefs. It could easily backfire.

Ultimately, it is unlikely we will be in a position to do much about this nomination being confirmed. What is vitally important is winning this and other elections to come. When you’re constantly forced to fight uphill, it is difficult to win. As we move forward, we need to spend a lot more time choosing our ground and the battles we fight.


Photo Courtesy of wwmt.com.

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