What to Bear in Mind During Amy Coney Barrett’s Confirmation Process

COMMENTARY: How have we ended up in a situation in which every single Supreme Court nomination becomes an opportunity for ideological propaganda and gamesmanship?

Judge Amy Coney Barrett, President Donald Trump's nominee for the U.S. Supreme Court, meets Oct. 1 with Republican Sen. Bill Cassidy of Louisiana  (off frame) on Capitol Hill in Washington.
Judge Amy Coney Barrett, President Donald Trump's nominee for the U.S. Supreme Court, meets Oct. 1 with Republican Sen. Bill Cassidy of Louisiana (off frame) on Capitol Hill in Washington. (photo: JIM LO SCALZO/POOL/AFP via Getty Images)

The U.S. Constitution gives the president the power to appoint Supreme Court justices “by and with the advice and consent of the Senate.” 

This is part of a wonderfully fashioned system of checks and balances intended to protect the nation’s highest court from control by any other branch of government. How, then, have we ended up in a situation in which every single nomination becomes an opportunity for ideological propaganda and gamesmanship? 

In the late afternoon of Sept. 26, President Donald Trump nominated Amy Coney Barrett, a federal judge sitting on the 7th Circuit Court of Appeals, to the Supreme Court. It was eight days after the passing of Justice Ruth Bader Ginsburg from pancreatic cancer. Judge Barrett, accompanied by her husband, Jesse, and some of their seven children, graciously accepted the president’s nomination. Unfortunately, Barrett’s opponents have focused relentlessly on her commitment to her Catholic faith, as if she intended to base her legal judgments on Church doctrine. 

But that innuendo recycles an old trope about Catholics in public service that faced John F. Kennedy in 1960 when he ran for president — an ugly undercurrent of bigotry that this country rejected long ago. Amy Coney Barrett could not possibly have made herself clearer on this point. 

“If confirmed, I would not assume that role for the sake of those in my own circle and certainly not for my own sake,” she said at the Rose Garden. And she means it. Barrett’s Catholic faith may inform every aspect of her life, but when it comes to the discharge of her judicial duties, she does not conflate deeply held beliefs with constitutional imperatives. 

Justice Antonin Scalia explained this straightforward principle. He said: “Just as there is no Catholic way to cook a hamburger, so also there is no Catholic way to interpret a text, analyze a historical tradition or discern the meaning and legitimacy of prior judicial decisions — except, of course, to do those things honestly and perfectly.” 

That is the voice of a legendary justice who, in addition to practicing his Catholic faith fervently, was also a constitutional originalist and textualist (and, interestingly, a friend of Ginsburg, despite their differences). He was the polar opposite of an activist judge, paying meticulous attention to the original meaning of the Constitution and the plain meaning of the law. 

Barrett has made it clear on many occasions, including her remarks upon her nomination to the Supreme Court, that she shares his legal philosophy.

We need to bear this in mind as the confirmation process moves into high gear. The president has submitted Barrett’s nomination to the Senate, and it has been referred to the Judiciary Committee. 

Chaired by Lindsey Graham, R-S.C., the committee consists of 12 Republicans and 10 Democrats. 

Most of the same cast of characters involved in Barrett’s confirmation hearing to the court of appeals back in 2017 are still on the committee. That was the occasion on which Sen. Dianne Feinstein, D-Calif., told Barrett that “the dogma lives loudly within you.” 

Her comment backfired. We shall see whether she learned from her mistakes this go-around. With the election less than a month away, the Democrats face strong pressure from interest groups to once again go after Barrett for her religious beliefs. 

So what can we expect to happen? Barrett has already answered the committee’s request for biographical, employment and financial information, as well as her published writings, speeches and judicial opinions. 

On Sept. 29, Barrett submitted more than 1,800 pages of documents, including more than 150 speeches and writings for both academic and popular audiences, and giving details of nearly 100 opinions she has written and more than 800 appeals in which she has participated. (One charge no one can level at her is that she lacks experience.) That day, Barrett also began a jam-packed schedule to meet with senators. Senate Minority Leader Chuck Schumer, D-N.Y., said he wouldn’t meet her. Sen. Kamala Harris, D-Calif., the Democrats’ vice-presidential nominee, said she hadn’t “made a plan one way or another.”

The FBI is also conducting a background investigation of Barrett, something done for all nominees to the federal bench. 

As Barrett underwent a similar investigation during her 2017 confirmation to the court of appeals, this investigation should be completed quickly, and it will almost certainly not raise any red flags.

Chairman Graham has scheduled committee hearings to start on Oct. 12. They will last three to four days — most of that time with Barrett as a witness and additional time reserved for outside witnesses to testify. Having reviewed the committee questionnaire, background investigation and produced documents, each committee member can use the hearings to question Barrett on her qualifications to serve. 

In recent memory, judicial nominees have refrained from answering certain questions during their confirmation hearings on the grounds that responding to those questions would contravene norms of judicial ethics. 

They invoke the so-called “Ginsburg Rule” — named after Justice Ginsburg, who, with the support of then-Sen. Joe Biden, refused to answer questions that probed how she would rule on particular issues. Barrett should do likewise because, put simply, the Ginsburg Rule is a good one: Judicial nominees should not be forced to answer hypothetical questions. 

When the hearings end, the process continues. Committee members may submit written questions to nominees. 

During the last confirmation hearing, Democrats submitted an unprecedented 1,278 questions to Brett Kavanaugh, more than the combined number of such questions to prior Supreme Court nominees in the history of the United States. Graham has promised a prompt committee vote. 

Committee rules permit any member on the committee to postpone the vote for a week. If Barrett’s confirmation process stays on track, she will most likely receive a committee vote on Oct. 22. 

After that, Majority Leader Mitch McConnell, R-Ky., will quickly bring Barrett’s nomination to the full Senate. In a process less damaged by the politicization of the courts, Barrett’s confirmation to the high court would be unanimous, or nearly so, as used to be common for confirmation votes. 

This is a remarkable woman who, if she is successful, will be — as poignantly noted by the president when introducing her — “the first mother of school-age children to become a Supreme Court justice.” As my friend and legal scholar Erika Bachiochi writes, Barrett can rightly be regarded as a “new feminist icon.”

But, to return to my original argument, all that is in a sense beside the point. 

Amy Coney Barrett is a judge of enormous distinction whose track record shows that she exercises her powers with scrupulous impartiality. Her confirmation to the high court is both appropriate and, it seems, likely to happen — even if some members of the Senate fail to live up to their end of the constitutional bargain to offer “advice and consent.”