VOTE 20

Amy Coney Barrett Confirmed To Supreme Court In Unprecedented Vote, Against RBG’s Dying Wishes

A Supreme Court justice hasn’t been confirmed with the support of just one party since 1869, according to The National Journal. Barrett is the 220th federal judge confirmed under President Trump and GOP Senate Leader Mitch McConnell.

Supreme Court nominee Judge Amy Coney Barrett meets with U.S. Sen. Martha McSally (R-AZ) on October 21, 2020 in Washington, DC. President Donald Trump nominated Barrett to replace Justice Ruth Bader Ginsburg after her death. (Photo by Jim Lo Scalzo-Pool/Getty Images)
Supreme Court nominee Judge Amy Coney Barrett meets with U.S. Sen. Martha McSally (R-AZ) on October 21, 2020 in Washington, DC. President Donald Trump nominated Barrett to replace Justice Ruth Bader Ginsburg after her death. (Photo by Jim Lo Scalzo-Pool/Getty Images)

In an unprecedented vote one week before voting concludes in the 2020 election, the Senate approved federal appellate judge Amy Coney Barrett to serve as the next Supreme Court Justice Monday night in a 52-48 vote along party lines. She is the first justice confirmed with support from just one party since 1869, according to The National Journal.

All Republicans except for Sen. Susan Collins of Maine voted to confirm Barrett, and all Democrats voted against it.

According to multiple reports, President Trump plans to host Barrett’s swearing-in ceremony at the White House tonight, returning after a day of holding “super spreader” campaign rallies. Justice Clarence Thomas, considered the most conservative member of the Court, will give the constitutional oath to Barrett. Once sworn in, Barrett could start hearing cases before the Court as soon as Tuesday.

Barrett’s confirmation makes the Supreme Court a 6-3 conservative majority, with Trump having nominated one-third of the court. Five of the six conservative justices have now been appointed by Republican presidents who lost the popular vote (George W. Bush in 2000 and President Donald Trump).

This is the fastest a nominee has been confirmed to the highest court in the land since 1975 — and confirmation has never happened this close to an election, or in the midst of an election: as of Monday evening, at least 63.6 million Americans have already voted. That 1975 confirmation was for Associate Justice John Paul Stevens, who had much more broad bipartisan support than Barrett does: he was confirmed in a 98-0 vote, in stark contrast to Barrett’s 52-48 vote. President Trump and Republicans rushed to make that a reality in the midst of federal elections they are at risk of losing, breaking their own rules and precedents in the process.

The late Ruth Bader Ginsburg died of complications from cancer on September 18, 2020. Seven days after Ginsburg’s death, Trump held a nominating ceremony for Barrett in the White House Rose Garden, against the express wishes of Ginsburg. NPR reported that Ginsburg told her granddaughter in the days before her death, “My most fervent wish is that I will not be replaced until a new president is installed."

At the age of 48, Barrett has the potential to serve for decades. If she serves until the same age as the late Ruth Bader Ginsburg, she will be on the court until 2059.

Barrett is expected to be a potentially pivotal vote on the Supreme Court case regarding the Affordable Care Act, which is set for a Nov. 10 hearing. Reproductive rights advocates are also concerned about Barrett helping to overturn the landmark Roe v. Wade decision.

Sen. Josh Hawley (R-MO) said shortly before the final vote Monday night that "the nomination of Amy Coney Barrett is truly historic. This is the most openly pro-life judicial nominee to the Supreme Court in my lifetime."

Sen. Elizabeth Warren (D-MA) tweeted Sunday that “17 abortion-related cases are one step from the Supreme Court … [it’s] time to codify Roe—so these protections stand no matter what.”

During Barrett's confirmation hearing, she declined to say if it's legal for armed civilians to intimidate voters at the polls (it's not), if presidents should commit to a peaceful transfer of power, if Roe v. Wade was "wrongly decided," if LGBTQ+ Americans have a constitutional right to marry, if the climate crisis is real, or if states should be able to ban contraception.

Here's a brief recap of questions she wouldn't answer:

Pro-democracy activists and Democratic senators urge voters: don't lose hope

In an op-ed for NowThis reacting to the confirmation, Sen. Warren said:

"This election, we tell them we’re watching. We’ve seen what they’ve done to our democracy and we’re fighting back. And look — I get it, these fights are hard. At times it can feel hopeless. But remember, hope is not given to us — hope is created by us. So we can’t give into fear and we can’t back down. Because the side that is undermining our democracy wants you to despair. 

So I urge you — dig a little deeper. There has never been a more righteous time to get in this fight. The White House, the Senate, the House, and every single state and local election matters in protecting the values we share. Vote, vote, vote — and organize your community to vote. Our democracy depends on you staying in the fight."

In a column for Slate, writer Dahlia Lithwick made a similar crucial observation, saying, "Mitch McConnell’s court coup is designed not just to decrease your political power but to teach you that you should expect yet more political powerlessness. That is how they are trying to ensure that even though there are more of you than there are of them, it doesn’t matter and they still get to call the shots."

Lithwick continued: "That’s where the fight lies. In understanding that however systemic the suppression of truth and trust might feel, there are still more of you than there are of them. The effort to say you are nothing and deserve nothing isn’t actually erasure. It’s actually their fear showing. And that fear in turn suggests that you still have more power than you may know."

Why everyone's talking about "court packing," or expanding the court

Some of that power lies in pushing for court reform. The idea of adding seats to the nine-justice Supreme Court has become increasingly popular among some voters and activists in the face of the GOP hijacking the democratic process for judicial confirmation. 

Often referred to as “court packing,” but perhaps more accurately termed “expanding the court,” the idea has the backing of some current senators — and may garner more public support given Monday night’s confirmation. Senate Majority Leader Mitch McConnell’s successful packing (or “stacking”) of the federal judiciary, via blocking Obama’s nominees and fast-tracking Trump’s, have some analysts and activists calling it “court balancing” or “rebalancing the courts.” Barrett is the 220th federal judge or justice confirmed under Trump and the McConnell-led Senate. 

Democratic presidential nominee Joe Biden has been asked repeatedly if he supports expanding the court on the campaign trail. 

While he has declined to give a yes or no answer on expanding the court, Biden said in a “60 Minutes” interview aired Sunday that if elected, he will form a bipartisan commission to research court reform and make recommendations within 180 days. In addition to court expansion, other suggested reforms include term limits for Supreme Court justices, who currently have lifetime appointments. Former Labor Secretary Robert Reich, a proponent of expanding the court, has noted that there’s nothing in the U.S. Constitution that prohibits increasing the size of the Supreme Court.

If Biden wins the presidency and Democrats are able to flip the Senate, addressing the imbalance of the courts will likely be high on the agenda.