Hard Questions, Blunt Answers

Charles Lipson answers some common and not-so-common questions about filling Supreme Court vacancies

By Charles Lipson

Filling seats on the Supreme Court is always significant and, in recent years, a source of bitter partisan conflict. The nomination of Judge Amy Coney Barrett to fill the seat held by the late Justice Ruth Bader Ginsburg raises those stakes even higher. If confirmed, she would change the court’s left-right balance and, if sworn in soon enough, could help decide disputes about the coming election. We asked regular contributor, Charles Lipson, to sort out fact from fiction in the Supreme Court confirmation process and discuss what it could mean going forward if Barrett ends up replacing Ginsburg on the high court.

Is there any reason the president shouldn’t nominate someone for the Supreme Court during an election year?

There may be political reasons, but no constitutional ones.

Haven’t both parties flipped their positions about confirming a Supreme Court pick during an election year?

Yes. The position each party takes now was their opponent’s in 2016. They are consistent about only one thing: Democrats want to fill vacancies with liberals, Republicans with conservatives. The rest is sound and fury, signifying nothing.

Does the battle over President Obama’s 2016 nomination still matter?

You bet it does.

In 2016, Obama’s last year as president, Justice Antonin Scalia died. To fill his spot, the president nominated Merrick Garland, a distinguished judge on the US Court of Appeals for the DC Circuit. But Republicans controlled the Senate, and they refused to give Garland an up-or-down vote or even a hearing.

Although Republicans were acting within existing Senate rules, Democrats were furious. Their fury only increased when Donald Trump was elected and filled the seat with a conservative, Neil Gorsuch, another distinguished appellate judge.

The bitterness over Garland’s treatment has not died. It suffused the hearings for Gorsuch and then for Brett Kavanaugh, whom President Trump nominated when Justice Anthony Kennedy retired. It lingers now over Amy Coney Barrett. Democrats are still furious about what they consider a “stolen seat” on the Supreme Court.

Do Republicans think their nominees have been treated unfairly?

Yes.

They are livid about how Democrats on the Senate Judiciary Committee treated Kavanaugh. At the last minute, as the committee was about to approve him, they floated sketchy allegations that Kavanaugh had committed sexual assault in high school. The allegations lacked key details, such as date and location, and had no contemporaneous support from any third party, even though the assault supposedly happened at a busy party. Still, scores of prominent Democrats said that “all women should be believed” and that Kavanaugh should withdraw his name.

Instead, he resolutely defended himself and won a narrow confirmation. But his reputation was sullied in the hearings and media coverage, all without hard evidence or the presumption of innocence. Republicans have the memory of elephants—angry elephants—about that fight.

Who started this nasty partisan fighting over Supreme Court nominations?

On that, the two parties agree. The other side started it.

Democrats point to the 2016 Garland nomination, while Republicans say it started with the 1987 nomination of Robert Bork, a prominent appellate judge who had been a Yale law professor and served as the solicitor general. The partisan attacks on Bork were so extreme they prompted a new word: “Borking.” It means smearing a judicial nominee with false, hyperbolic accusations.

Why are some Supreme Court battles more important than others?

Every seat on the court matters, but the fiercest battles are those that could change the court’s left-right balance. That’s why replacing Scalia and now Ginsburg is so consequential.

Scalia was the most important conservative jurist in a generation. Obama would have replaced him with a liberal, Merrick Garland.

Ginsburg was the most important liberal jurist in a generation and the most important feminist judge ever. Trump proposes to replace her with a staunch conservative, Amy Coney Barrett.

Is Judge Amy Coney Barrett qualified to become Justice Amy Coney Barrett?

Absolutely. She finished No. 1 in her Notre Dame Law School class, then clerked for Justice Scalia, became a senior law professor at her alma mater and then a federal appellate judge. The issue is not her legal qualifications, any more than it was for Judge Garland. The real issues are her judicial philosophy and the partisan differences that surround Supreme Court appointments.

When will the Senate hold hearings on Barrett?

As soon as Judiciary Committee Chairman Lindsey Graham (R-S.C.) can schedule them, probably on October 12. He has said the committee will vote on Oct. 22 so her confirmation can move to the full Senate for approval before the November election. Voting before the Senate (and possibly the president) becomes a lame duck eliminates the charge that the new justice is “illegitimate.” It also ensures the Supreme Court has all nine justices to deal with any election disputes. Democrats currently lack the votes to defeat her nomination, but they are likely to try every procedural maneuver they can to slow the process.

Will the Supreme Court have any say in the upcoming election?

Yes. The court could be called on to decide all kinds of controversies. Those are bound to arise because many states have passed new laws to encourage mail-in voting. Most states lack experience with massive mail-in voting, however, and they can expect all kinds of glitches and mischief. Some have not purged their voter rolls to remove voters who have moved or died. These problems, which are related to the pandemic, come on top of the usual difficulties with in-person voting in normal times.

Both parties expect trouble and have already hired hundreds of lawyers to watch the voting and contest any irregularities. The Supreme Court could be called on to decide some of those controversies, and decide them quickly.

Will Justice Barrett help decide these election disputes?

Yes.

Democrats will object, as Sen. Cory Booker (D-N.J.) already has. Others will follow.

Republicans reject those objections. So, almost certainly, will Barrett. She will note that she owes nothing to Trump after the nomination or to Republicans after the confirmation. That’s why judges have lifetime appointments. She will decide for herself about recusal, as all Supreme Court justices do, and she won’t make any promises in the hearings.

Still, the Democrats’ objections are meaningful. They are an advance warning that the court’s election rulings will be damned as illegitimate if they favor Republican candidates.

Does it really matter if the court has nine justices?

Yes, for two reasons. One is that a court with only eight justices could produce tie votes. The other is that Trump’s latest nominee will change the court’s conservative-liberal balance.

Let’s address each reason in turn.

Why are tie votes on the Supreme Court bad?

The whole point of the highest court is to render final decisions, which can’t happen if there are ties. That’s a nasty problem if cases need to be resolved quickly and decisively, such as those surrounding the November election. With nine justices instead of eight, there can be no ties.

How will Justice Barrett change the court’s political balance?

She will lock in a conservative majority.

After Justice Ginsburg’s death, the court has only three reliable liberals, Stephen Breyer (now age 82), Sonia Sotomayor, and Elena Kagan. What had been 5-4 liberal decisions, with Ginsburg in the majority, are likely to become 5-4 conservative decisions, with Barrett in the majority.

The new composition also affects Chief Justice John Roberts’s role. Although he is generally conservative, he has occasionally voted with the four liberals. That has allowed him to write majority opinions and steer the court away from political controversies, as he did with the 2012 Affordable Care Act decision.

With only three liberals, that logic changes. Roberts is no longer positioned to be a swing vote. To write majority opinions, which set precedents, he’ll have to vote with the conservatives. He’s also in a much weaker position to steer the court politically. He simply doesn’t have the votes.

The court’s shifting balance has one other major implication. Now that conservatives have a secure majority, they will surely choose to hear some controversial cases they had avoided. That could lead to new jurisprudence on affirmative action, gun rights, immigration, workers’ rights, and a host of other issues.

These prospective changes in the court’s composition and its likely rulings on major issues deeply trouble progressives—and may fire up their voters. In fact, mobilizing voters is a major goal for both sides in the Barrett hearings. That’s why both Democrats and Republicans will exaggerate everything about the nominee and her elevation to the Supreme Court.

Do I really have to learn the words stare decisis?

I’m afraid so.

Stare decisis means that settled law should stay settled. Democrats will emphasize that idea because they want to protect the precedents set by liberal courts over the years.

Conservatives may not like those precedents, but they are surprisingly divided about overturning them. Some, like the late Justice Scalia, prefer to uphold precedents. Continuity, they note, is the very essence of conservatism, and that requires a stable legal framework. Others, led by Justice Clarence Thomas, say it is much more important for current decisions to follow the original text of the law and Constitution, even if that means tossing out old decisions.

Expect Democrats to hammer home stare decisis during the Barrett hearings. They may well ask whether she agrees with Scalia (her mentor) or Thomas. They aren’t interested in arcane legal philosophy, however. They care about a 1973 decision, Roe v. Wade, which established a constitutional right to abortion. “Judge Barrett,” they will ask, “just how settled is that decision?”

Will Judge Barrett’s Catholicism play a role in the confirmation hearings?

Only if Democrats make a grave political miscalculation.

They made one in 2017, when Barrett was nominated for the US Court of Appeals for the Seventh Circuit (in Chicago). The top Democrat on the Judiciary Committee, Dianne Feinstein, famously told Barrett, “The dogma lives loudly within you.” The implication was that Barrett’s Catholic faith would lead her to overturn Roe.

At the time, all Barrett needed to say was that she would rule solely based on the law and would follow Supreme Court decisions and precedents. That answer falls short now since Barrett will help set those precedents. Expect her to be questioned intensively, once again, about abortion and Roe.

Democrats face real risks if their questions are directed at Judge Barrett’s faith or, worse, seem to impugn it. Part of the risk is constitutional. The US Constitution prohibits any “religious test” for public office. Republicans said the attack on Barrett’s “dogma” sounded suspiciously like a test. Feinstein denied it.

The larger risk is political. There are millions of Catholic voters in swing states, and they will be incensed if a coreligionist is attacked for her faith. They aren’t the only ones. Most Americans think faith is a private matter, even for public figures. Unless the nominee has said that her religion governs her rulings, they think Congress should butt out. It is far safer for Barrett’s opponents to focus on public issues, not personal faith.

Which policy issues will dominate the Barrett hearings?

Abortion, healthcare, and disputes about election integrity and the November balloting.

Since we have already discussed abortion and November voting, let’s turn to healthcare, which Democrats are certain to highlight in the Barrett hearings. That makes perfect sense politically. It’s one of their best election issues, and the Supreme Court is directly involved. On Nov. 10, the court is scheduled to hear a major case on the Affordable Care Act (ACA).

The pending case marks the second time the court has been asked to rule on whether the ACA is constitutional. The first time, in 2012, the Supreme Court had to decide whether Congress had the constitutional authority to enact the most significant parts of the law. In its ruling, the high court saved most of the original act, thanks to a contorted decision by Chief Justice Roberts. Obamacare was legal, he ruled, because it was a tax, and Congress has the power to tax. That rationale was flimsy, but Roberts used it to insulate the court from an onslaught of criticism that would have resulted if the justices had overturned Obama’s premier achievement during his presidency.

Since then, both the act and the court have changed. The ACA’s tax, also known as the individual mandate, has been eliminated and, with it, the rationale for the law’s constitutionality. The court’s composition has changed, too. Roberts no longer has the votes to save the act, even if he wants to.

Democrats know that. And they know Barrett will not say anything meaningful about an issue pending before the court. Barrett’s reticence won’t stop Democrats from grilling her on the ACA. They can use the hearings to keep healthcare in front of voters and imply that Trump is trying to take away their healthcare by appointing conservative judges.

The Democrats’ vice presidential candidate wasted no time doing just that. Barrett was still in the Rose Garden, thanking the president for her nomination, when Kamala Harris tweeted, “Trump’s hand-picked successor to Justice Ginsburg’s seat makes it clear: they intend to destroy the Affordable Care Act & overturn Roe.”

Could the Barrett nomination affect the election?

Yes, for both president and close-run Senate and House contests.

I have already noted that Justice Barrett could help decide legal questions about mail-in ballots, voter fraud, and other election issues.

Beyond that, her hearings and floor vote could affect campaigns for the president and Senate and perhaps the House. That fight has already begun. Before Barrett had even accepted her nomination, Senate Democratic Leader Chuck Schumer sent out a fundraising letter condemning her. Many other Democrats will do the same. On the opposing side, Trump and the Republicans will push just as hard, saying how strongly she will defend American values.

What we don’t know yet is which party will be more energized by this fight, or rather more energized than they already were before Ruth Bader Ginsburg died and Amy Coney Barrett was nominated. Republicans have long focused on controlling the judiciary. For them, the Barrett fight could increase turnout among evangelicals (some of whom stayed home in 2018) and push working-class Catholics into the Republican column. For Democrats, the motivating issues are healthcare and women’s reproductive rights. Highlighting Roe, in particular, will bring them a windfall of campaign money and might move some women to support Democrats.

The SCOTUS nomination could affect the election in yet another way, one that has received little attention. The hearings and floor vote will show voters whether Democratic nominee Joe Biden can control his party, especially its activist left wing. If attacks on Barrett are frenzied and fanatical, they could not only alienate voters but undercut Biden’s most compelling argument: that he can calm the roiled waters of American politics and govern as a center-left president. If he cannot control his party’s contentious activists during this nomination process, Republicans will say, how can he calm the country? How can he govern from the center if he can’t rein in these extreme left-wing voices?

High stakes on the high court—and beyond

Amy Coney Barrett’s nomination involves more than a single seat on the Supreme Court, important as that is, and more even than a conservative majority on the court. Depending on how her hearings go, they could affect which party controls the White House and Senate. If the Republicans retain control of both, they can continue to reshape the federal judiciary, as they have over the past four years. If Democrats win, they can stop that transformation and restore their long-standing dominance of the courts.

These battles are intertwined, and all of them are coming to a head. The electorate is closely divided and angry, with all three branches of government hanging in the balance.