by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Judge Amy Coney Barrett, President Trump’s nominee to fill the Supreme Court vacancy left by Ruth Bader Ginsburg’s death, is an intelligent and thoughtful conservative who has demonstrated a career-long commitment to the rule of law. Judging from the criticisms she has been receiving from Democrats, there is no compelling case against her.
The first of those arguments is that it is improper to fill the seat during a presidential election, even though it is obviously within the constitutional powers of the president and the Senate. (We will leave aside, as beneath the dignity of any adult, the consideration that Ginsburg wanted a delay.) But the norm that Republicans are allegedly violating does not really exist. The absence of election-season confirmations in the historical record has more to do with accidents of circumstance than with any perceived impropriety. Only three vacancies have opened between August 1 and Election Day, and the Senate was out of session until after the election in all three cases. Democrats and the press have recently been citing the case of Chief Justice Roger Taney’s death in October 1864. They generally neglect to mention that, not only was the Senate out of session at the time, but Lincoln deliberately dangled the nomination to keep potential nominees interested in campaigning for him. (When the Senate returned in December, Lincoln’s nominee was confirmed the day he was nominated.)
The Barrett-specific arguments against confirmation are, if anything, weaker. When Barrett was up for her current appellate judgeship in 2017, Senator Dianne Feinstein attempted, notoriously, to portray her as a religious extremist who could not be trusted to apply the law without bias. At that time Barrett said, “I see no conflict between having a sincerely held faith and duties as a judge. I would never impose my own personal convictions upon the law.”