Partisan Supremacy Over the Supreme Court (Part 2)
The aftermath of the death of Ruth Bader Ginsburg.
Etelson Alcius | 12/03/20
A lethal blow to constitutional modernism and liberal politics hit Washington on the afternoon of September 18. Ruth Bader Ginsburg died at 87. The feminist trailblazer was the second woman to serve on the Supreme Court and one of the longest-serving justices of all time. The political turmoil has followed since her death, and the decision of appointing a new justice to fill the seat has shattered congressional walls in D.C while begging the question, would her successor be any better at applying the law? Would the nomination and confirmation process be smooth? How would the political response be?
Career of RBG
RBG had for so long been an opponent to many things the conservative bloc on the Supreme Court stood for, as well as being an opponent herself. With the rise of originalism on the court, RBG ruled along with the judicial philosophy of modernism, which advocated that the contemporary ideals of society be interpreted when reading the Constitution and that the Constitution is purposely vague in order to draw sound interpretations that reflect modern society. RBG ruled in favor of many ideals that reflect modern society during her tenure, including the 1996 United States v. Virginia case, where she stated gender equality was a right; In 1999 Olmstead v. LC, she stated that individuals with mental illnesses had rights, and even in regards to abortions and reproductive rights, she voiced her opinions adamantly. RBG was arguably the de facto leader of the liberal bloc and modernist movement in the Court.
Vacancy on the Court
In the later hours of September 18, a vacancy hit the court whilst shaking the political landscape of D.C. Ruth Bader Ginsburg had died, her last words being, “My most fervent wish is that I will not be replaced until a new President is installed.” The public waited with bated breath, would such a request be upheld?
Mitch McConnell, the Senate majority leader, has long had dreams of dominating the Courts to push back against the modernist movement and propel the court into an era of originalism and judicial conservatism. With the successful nomination and confirmation of jurists of the likes of Thomas, Alito, Gorsuch, and Kavanaugh, his dreams had nearly been accomplished. With the passing of RBG, McConnell was faced with the opportunity of a 6-3 conservative majority on the court, an opportunity that could not be wasted. And so it began: the rush to find a candidate for the unanticipated and coveted vacancy in the Supreme Court.
Immediately following the death of Ginsburg, the despair was noticeable that many politicians and voters shared, Democrat and Republican. Political leaders ranging from senate majority and minority leaders Mitch McConnell and Chuck Schumer, former presidents Bill Clinton and Barack Obama, to former secretary of state Hillary Clinton and House Speaker Nancy Pelosi, all expressed their most sincere condolences and declared their high regard for the judge. Despite this, the question still remained: what would become of her seat? It didn’t take long to find out.
With the presidential election looming, Senate Majority Leader Mitch McConnell on the following Monday vowed to hold a vote on President Trump’s Supreme Court nominee the Monday following Justice Ruth Bader Ginsburg’s death. The backlash was immense. In the months leading up to the 2016 election, McConnell refused to consider President Barack Obama’s Supreme Court nominee Merrick Garland after the death in March of conservative and originalist icon Justice Antonin Scalia. But this situation is different, he implies, making sure to justify his decision by asserting that Republicans control both the presidency and the senate. In his words, “Since the 1880s, no Senate has confirmed an opposite-party president's Supreme Court nominee in a presidential election year.” The decision was final. Donald Trump would gain yet another nomination after both Kavanaugh and Gorsuch, and McConnell would manifest a 6-3 majority court.
Donald Trump was immediately urged by McConnel and other Republican leaders to fill the vacancy prior to the election. The list included names of Republican Sens. Ted Cruz of Texas and Tom Cotton of Arkansas, the current ambassador to Mexico, Christopher Landau, and Gregory Katsas, a Trump nominee to the U.S. Court of Appeals for the District of Columbia Circuit, among others. Eventually, on September 26, Donald Trump nominated Amy Coney Barret to the Supreme Court. The play was in motion. Mitch McConnell would allow a hearing, Senate Republicans would fall in line and vote to confirm, Donald Trump would have nominated 3 Justices, and a 6-3 conservative majority on the court was on the horizon. It was not to say it wouldn’t occur without a fight. The backlash was immense. Leading Democratic politicians called for a filibustering during the hearing, demonized Republican leadership, and supporters went so far as to suggest radical changes to the Supreme Court, which included packing and extending the number of Judges able to serve. Would the Democrats be able to successfully repel the realization of a conservative majority court, or would they surrender to the inevitable?
The Rise of Amy Coney Barret
The day is September 26, 2020. The Democrats scatter in Congress, Republican congressional leaders race to the telephone to reach the White House, and the press and social media are hot on the story as it unfolds: Donald Trump nominates Amy Coney Barret to fill the vacancy of RBG. Some consider this a blatant disrespect to the legacy of RBG; the replacement of a modernist feminist icon with a conservative textualist interpreter. Others view it as a celebratory moment as a renowned female judge with piercing intellect, experience, and legal knowledge takes her first steps into the mayhem that is the confirmation process.
Judge Barrett served as a judge on the U.S. Court of Appeals for the Seventh Circuit after being nominated by President Trump and confirmed by the senate in 2017. Before becoming a judge, she was a Professor of Law at Notre Dame Law School, where she focused on constitutional and statutory interpretation and the Federal courts. Before her tenure as a professor and judge, she practiced at the following law firms: Miller, Cassidy, Larroca & Lewin LLP and Baker Botts LLP. Judge Barrett inherited her judicial philosophy from the conservative Supreme Court Justice Antonin Scalia, an icon for textualism on the court, whom she clerked for.
Democrats on that fateful night launched their case against federal Judge Amy Coney Barrett, President Donald Trump's Supreme Court nominee, saying support for her confirmation was equivalent to a vote to end the Affordable Care Act, as well as a possible revisiting of Roe V. Wade which would result in the supposed end of abortion rights.
In a series of long official and unofficial statements on social media, top Democrats made frequent reference to Covid-19 and the negative implications that could arise from stripping health insurance options from millions of Americans in its midst.
The criticism of Barrett revolved around the parameters of the issue at the frontline: health care, and the supposed underlying plan of dismantling the ACA.
"President Trump has been trying to throw out the Affordable Care Act for four years. Republicans have been trying to end it for a decade. Twice, the U.S. Supreme Court upheld the law as constitutional," Democratic presidential nominee Joe Biden, Obama's vice president, said in a statement. "But even now, in the midst of a global health pandemic, the Trump Administration is asking the U.S. Supreme Court to overturn the entire law, including its protections for people with pre-existing conditions."
Among other statements, Senate minority leader Chuck Schumer reminded the masses that "The American people should make no mistake—a vote by any Senator for Judge Amy Coney Barrett is a vote to strike down the Affordable Care Act and eliminate protections for millions of Americans with pre-existing conditions.”
Despite the pleas and outcry from the Democrats, protests throughout the streets of Washington, and demonization of the nomination, Mitch McConnell remained firm. Republicans will have this vote.