Opinion Columnists Katelyn McCarthy and Melanie Moyer write conflicting views about Amy Coney Barrett's SCOTUS appointment.
Pro Appointment: To Confirm, Or Not to Confirm
Why Precedent Is in Amy Coney Barrett’s Favor.
By Katelyn McCarthy
“[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the Supreme Court” (U.S. Const. Art. II, § 2).
Nowhere does the Constitution limit the President’s ability to nominate a Supreme Court justice, or the Senate’s to confirm her. The idea that a President ought to not nominate a justice during an election year is purely arbitrary. Let’s follow the logic through. If the President shouldn’t nominate a justice during an election year, then why should he be able to nominate one the year prior to the election? Or two years prior to the election year? Or three? In fact, why ought he be able to nominate anyone at all, ever? And the Senate, too. If they ought not confirm a justice during an election year, then why ought they be able to the year before—or at any time at all?
“Because,” some will say, “it is hypocritical of the Republicans to vote on Judge Barrett, seeing as they refused to vote on Merrick Garland. And he was nominated in March of an election year, whereas Barrett was nominated in September! Mitch McConnell, who refused to bring Judge Garland to a vote because it was an election year, has flip-flopped this time around.”
Let’s take a closer look at what Senator McConnell said about Judge Garland’s nomination. On February 18, 2016, Senators McConnell and Chuck Grassley of Kentucky and Iowa, respectively, co-authored an article in The Washington Post in which they stated, “Given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court.”
But the buck doesn’t stop there. The following sentence states, “It is today the American people, rather than a lame-duck president whose priorities and policies they just rejected in the most-recent national election, who should be afforded the opportunity to replace Justice Scalia.”
This time around, we have two notable differences. President Trump is not a lame-duck president. And the American people did not reject his priorities in the most recent national election—we expanded them.
Here are the facts. In 2014, the Republicans in the Senate kept all of their seats which were open for election, and gained nine seats previously held by Democrats, whereas Democrats picked up no seats previously held by Republicans. The Senate flipped from Democrat control to Republican control. In the 2018 elections, by contrast, Republican control in the Senate remained and was expanded.
To compare the current Supreme Court situation to that of 2016 is to make a false equivalence. Yes, the same specific event is taking place—namely, a Supreme Court seat is open. However, the situations surrounding those openings are different. The first involved a Senate which, in the prior election, had flipped from the Democrats to the Republicans. The second involves a Senate in which Republican control has been expanded. For all intents and purposes, this expansion serves as a green light from the American people.
Now, McConnell and Grassley’s position is not inherently constitutional. By that I mean that the Constitution contains no provision that a lame-duck president whose party has lost the majority in the Senate ought not nominate a justice. Not at all. President Obama was acting constitutionally in nominating Judge Garland.
But McConnell was acting constitutionally, too. The Constitution does not require the Senate to bring a judicial nominee to a vote.
His actions seem, frankly, rational and expected. Why would a Republican-controlled Senate (or a Democrat-controlled Senate, for that matter) that disagrees with the jurisprudence of a nominee bring that nominee to a vote, especially when they have the chance of winning the presidency and confirming a nominee with whom they do agree on the law?
Let’s take a look at history. There have been 29 vacancies on the Supreme Court in election years or lame-duck sessions. 19 of these 29 times, the same party has controlled the presidency and the Senate. Of those 19, 10 times the president has made a nomination before the election. Nine times out of the 10, the nominee was confirmed.
By contrast, in 10 of those 29 times were the presidency and the Senate controlled by different parties. Of those 10, six times the president nominated someone before election day. One time out of the six, the nominee was confirmed.
If history is a guide, to confirm a justice this year would be in line with precedent. Not to have confirmed Merrick Garland in 2016 is also in line with precedent.
One might accept the constitutionality and the precedent of this matter, but think that there is a sense of decorum the Republicans are breaking. I would like to ask any Democrat politician out there: if your party controlled the presidency and the Senate, if there was a vacancy on the Supreme Court, and if we were two months away from an election which you may or may not be going to win, would you delay nominating and voting on a judge until the election passed?
And it is not as if a dark horse has been sprung upon them, for Amy Coney Barrett is no stranger to the Senate. They reviewed—and confirmed—her in 2017. Surely, they can’t have forgotten their reviews and hearings from three years ago!
Ultimately, I think the reason that this nomination is so contentious, and why nominations have become more and more contentious over time, is because of the increasing prevalence of a loose constructionist manner of reading the Constitution. If the Constitution doesn’t mean what it says but means what any one judge wants it to mean, then two things occur. The Court is used as a tool by which to “pass legislation” by means of judicial activism, and the opinions of any one justice become of utmost importance. “We have to have judges who think what we want so that they’ll do what we want,” is the underlying mentality of a loose constructionist.
In the end, the partisan fight over Supreme Court nominees is not going to be solved by delaying their confirmation hearings, regardless of which parties control the presidency and the Senate. A return to strict constructionism will guarantee that the law is interpreted fairly and that the Court is not overstepping its bounds. Amy Coney Barrett is such a constructionist.
Con Appointment: A Position on the Supreme Court Should Not Take Precedence Over the Entire American Population
Appointing a new Supreme Court Justice in over half the time it usually takes to vet their candidacy will have immeasurable impacts on the American people. Is this a risk we’re allowing Mitch McConnell to take at our expense?
By Melanie Moyer
The death of Ruth Bader Ginsburg, a gender equality and reproductive rights icon, shook the nation in a year that has been wrought with world-changing events. Beyond recognizing the importance and legacy of RBG, her death has made many Americans reflect on who will fill her position in the Supreme Court. It would be an understatement to say that no one could hold the same importance as she did on the Court, yet the seat that is left absent in the wake of her death is of the utmost importance in this political climate.
In the final few weeks before the next presidential election, Donald Trump has made it more than obvious that filling this seat is extremely important for the power of his administration and the fate of the country as a whole. The urgency that has been given to appointing a new Supreme Court Justice has proven that putting the Rebuplican party at an advantage over the Democratic party has been prioritized over the wellbeing of the American people.
Unlike the appointment of Brett Kavanaugh that was contested on the premise of his predatory behavior towards Christine Blasey Ford, the character of Trump’s new appointee is not a part of the main discussion surrounding her appointment. This shift in focus should be indicative of the danger appointing a new Supreme Court Justice holds right now, for Trump’s pick is not without a problematic history.
Further, many have gotten the impression that the argument against appointing a new Supreme Court Justice in the short time before an election lies in Mitch McConnell’s previous oppositional stance to something very similar during Obama’s presidency. While this double-standard is an issue, there is no evidence that McConnell has the integrity to stay true to his political stances when party benefit is involved. Thus, while it is discouraging and alarming that our standards of conduct in the Senate are so low, it is vital to go beyond partisan politics and react in a way that takes the needs of our country as a whole into account.
When we go beyond partisan politics, there exists permanent damages that can be created by a rushed appointment of a nominee. Adam White, a scholar at the American Enterprise Institute and a professor at George Mason University Law School as well as a supporter of the Trump administration and the Supreme Court nominee, brings up several dangers of Trump’s rushed appointment. He discusses the weight that the appointment of a Supreme Court Justice holds, for it seems as if many forget that it is a lifetime position. He advises that senators “take prudence” and “wait until after the vote to take stock of the situation, and also to take their time in vetting the nominee” (NPR).
The Congressional Research Service reports that the average time it takes between the nomination and the final Senate vote on a Supreme Court Justice since 1975 is 67 days (2.2 months). With the proposal that this vetting process is cut in more than a half with the election in less than a month comes the danger of a rushed appointment, something that could take decades for our country to recover from. To maintain standards of our political integrity, the vetting process should be done right and given the proper amount of time to ensure constitutional behavior.
Further, it needs to be recognized that any bipartisan behavior in this political climate will cause adverse reactions from both political parties. Many Democratic leaders have proposed that they could add more justices to the Supreme Court if there is no integrity in who is appointed. While creating new positions is an issue that requires further examination, many Republicans are seeing it as a problem of “court-packing.” White advises that “moderate senators ought to really consider a way to settle both this vacancy and the court-packing plan [to] make some sort of deal” (NPR).
The partisan atmosphere that already exists shouldn’t be provoked by a rushed appointment because both sides are talking about making irreversible changes to the Supreme Court. Given the state of our country as a result of a pandemic, shaky foreign relationships, civil unrest related to police brutality and the Black Lives Matter movement, and, most importantly, the climate crisis, it would be better for the general population of Americans for the Senate to reach an agreement rather than continue with partisan actions that do not remedy that issues that plague our country. With two political parties that are so polarized against each other, actions should be that of compromise and not political warfare.
There exists the argument that a new Supreme Court Judge is needed before the election in case Trump decides to contest the results and not have a peaceful transfer of power. This leads many to think that Trump is using his ability to appoint a Justice who would vote in his favor to remain in power longer than he is constitutionally allowed to. Though the problem of deadlock in the Supreme Court is an issue that many are arguing for in a rushed appointment, the question is raised whether this hypothetical problem outweighs the lifetime position of a Supreme Court Justice. In the context of the election, it makes sense that the proper channels of justice should be used to ensure a fair election; however, it’s dangerous to believe that a single person—in this case Trump’s nominee—should decide the results of the election. If unprecedented behavior such as rushing the appointment of a Supreme Court Judge is needed, it should not be at the cost of an entire generation of Supreme Court decisions.
The job of the Senate is to make decisions that best serve the American people, not the president, not a political party, not an individual. By rushing the appointment of a Supreme Court Justice just weeks before an election, Trump and the Republican-led Senate gambles at the cost of the entire American population. With cases coming up in the Supreme Court such as decisions related to the Affordable Care Act, we need to realize that the position of this Justice will sway the stance of the Supreme Court for decades. Thus, the questions that remains are how Americans actually benefit from a rushed appointment and are Republican Senators considering what is at stake with this appointment, regardless of who nominates them.
Melanie Moyer '22,