Arguments that there is something wrong with moving ahead now to fill the Supreme Court vacancy caused by Justice Ginsburg’s death are bogus. Judge Barrett’s confirmation should proceed except in the unlikely event that holding off could produce a bipartisan deal to deescalate the toxic politicization of judicial confirmations. An ideal compromise would (1) reinstate the 60-vote threshold for confirming federal judges and (2) revive the standard that judicial confirmations should be based on merit rather than politics.
The Barrett nomination and confirmation schedule are appropriate
Prior to the Merrick Garland fiasco, there was no apparent problem with Supreme Court nominations and Senate confirmations during the last year of a president’s term. Presidents possess the full range of their authorities for their full time in office and clearly have the right to submit nominations whenever Supreme Court vacancies occur. Those who elected them expect no less. Likewise, the Senate has full authority, and even an ethical duty, to consider such nominations in good faith.
The projected timetable for Judge Barrett’s confirmation of about 38 days is short but not unprecedented. For example, the Washington Post reports that Justice Ginsburg was confirmed in 42 days, Sandra Day O’Connor in 33 days, and John Paul Stevens in only 19 days. In any event, the confirmation timeline should not depend on an arbitrary number of days but on whether it gives the Senate enough time for its due diligence. Judge Barrett was nominated and confirmed to the Seventh Circuit in 2017; thus, she is recently vetted and a known quantity to the Senate. She appears to be an exceptionally well qualified nominee, both professionally and personally. While issues could arise that legitimately require more time, there is no reason at present to dismiss the proposed confirmation timeline.
The Garland debacle should not become the new normal
Democrats and the liberal media are in high dudgeon over the Barrett nomination based on Republicans’ refusal to consider former President Obama’s nomination of Merrick Garland during the last year of his term in 2016. Their stance was rightly condemned by Democrats, the media, and many others. The hypocrisy Republicans now display by their reversal of position is palpable. However, none of this constitutes a substantive justification for opposing Judge Barrett’s confirmation. For one thing, Democrats and the media are being just as hypocritical in reversing their own stance from 2016. Also, there’s little doubt that if the situation were reversed, Democrats (with liberal media support) would have done what Republicans did in 2016 and would do now what Republicans are doing. Sadly, Supreme Court confirmations have become so politicized that hardly anything said by either side is worth taking seriously.
More importantly, the contention that the Senate should not confirm a Supreme Court nominee in the last year of a president’s term, which liberals now invoke as “the Garland principle,” was unprincipled nonsense when Republicans disingenuously conjured it up in 2016 and still is today. It would be equally wrong for Democrats to embrace it now and probably perpetuate it. While the Senate has the raw power to deny good faith consideration to Supreme Court nominations, this surely amounts to an abuse of its constitutional advise and consent role and a dereliction of its duty at least from an ethical standpoint.
There is an overriding need to deescalate politicization of judicial appointments before it destroys the judiciary
While acting on the Barrett nomination now is fully justified, there may be a better option for those who take a longer-term view and care foremost about preserving the integrity of the judicial branch. The federal judiciary can function effectively only if judges are nonpartisan and independent in reality and perception. However, judicial appointments, particularly to the Supreme Court, have been politicized to the point of jeopardizing the credibility of the judiciary. The process has degenerated further with each recent confirmation. The Barrett confirmation promises to continue this sorry trend. Democrats and the media are already spewing hyperbole and threatening drastic retaliation if the nomination goes through. Their worst threat is to “pack” the Court, which would utterly destroy its stature. Reversing this downward spiral is arguably more important than any individual confirmation.
Restoring the 60-vote threshold for judicial confirmations
Longstanding Senate rules can force a 60-vote majority to confirm federal judges. However, in 2013 Democrats invoked the so-called “nuclear option” (well named to capture its extremism) to override the rules and enable confirmation of lower court federal judges by simple majority vote. In 2017, Democrats’ mindless filibuster of the Gorsuch nomination forced Republicans to abandon the 60-vote rule for Supreme Court confirmations as well. In the closely divided Senate, reviving the 60-vote threshold would necessitate significant bipartisan support for judicial confirmations.
Restoring confirmations based on merit
Not too long ago, Supreme Court nominees were confirmed or rejected based on their merits: intellect, background and experience, and personal integrity. Nominees’ judicial philosophy made little difference so long as they were within the mainstream of legal thought; nor did it matter whether the nominating president was a Republican or Democrat. Applying this standard, bipartisan Senate majorities overwhelming confirmed nominees as ideologically disparate as Ginsburg (96-3) and Scalia (98-0). It also was considered inappropriate to apply “litmus tests” to nominees or press them to reveal how they would vote in specific cases. (The latter became known as “the Ginsburg standard” since Justice Ginsburg espoused it forcefully at her confirmation hearing.) Returning to these merit-based standards along with reimposing the 60-vote rule would go a long way toward restoring integrity to judicial confirmations.
Is compromise possible?
The Senate has sunk so low that any effort at rational, bipartisan compromise is a long shot. However, the above steps are hardly radical; they simply restore the status quo that existed for many years. The 60-vote rule applied until very recently. With several notable exceptions, broad bipartisanship and merit-based standards held sway through 1994 when Justice Breyer was confirmed by an 87-9 vote. Nominees continued to receive significant bipartisan support as recently as Justice Kagan in 2010.
The hyper-partisan Senate leaders on each side would be of no help in forging a compromise. However, a handful of courageous, institutionalist senators from each party (if they can be found) could form a critical mass to force reform. Now is as good a time as any to try. While Republicans currently have the upper hand, they are at considerable risk of losing both the presidency and their Senate majority. This would open the floodgates for Democrats to add judges (and maybe justices) in the immediate future. The stakes are even higher for Democrats. This is the first appointment in decades that would dramatically change the Court’s ideological composition. Replacing Ginsburg with Barrett probably would guarantee a conservative majority of justices for years to come even if Democrats sweep the election.
While a bipartisan compromise along the above lines may be the ideal outcome, it is probably a bridge too far. If so, and if no shocking developments occur in the confirmation process, Judge Barrett should be confirmed.