Judge Amy Coney Barrett, President Trump’s nominee to fill the Supreme Court vacancy left by Ruth Bader Ginsburg’s death, is an intelligent and thoughtful conservative who has demonstrated a career-long commitment to the rule of law. Judging from the criticisms she has been receiving from Democrats, there is no compelling case against her.
The first of those arguments is that it is improper to fill the seat during a presidential election, even though it is obviously within the constitutional powers of the president and the Senate. (We will leave aside, as beneath the dignity of any adult, the consideration that Ginsburg wanted a delay.) But the norm that Republicans are allegedly violating does not really exist. The absence of election-season confirmations in the historical record has more to do with accidents of circumstance than with any perceived impropriety. Only three vacancies have opened between August 1 and Election Day, and the Senate was out of session until after the election in all three cases. Democrats and the press have recently been citing the case of Chief Justice Roger Taney’s death in October 1864. They generally neglect to mention that, not only was the Senate out of session at the time, but Lincoln deliberately dangled the nomination to keep potential nominees interested in campaigning for him. (When the Senate returned in December, Lincoln’s nominee was confirmed the day he was nominated.)
The Barrett-specific arguments against confirmation are, if anything, weaker. When Barrett was up for her current appellate judgeship in 2017, Senator Dianne Feinstein attempted, notoriously, to portray her as a religious extremist who could not be trusted to apply the law without bias. At that time Barrett said, “I see no conflict between having a sincerely held faith and duties as a judge. I would never impose my own personal convictions upon the law.” As a law student more than 20 years ago, she co-authored an article arguing that a judge who opposes the death penalty on religious grounds might have to recuse himself in certain cases. Note, however, that even in that theoretical case, her view was that the judge should not try to force the law to comply with the dictates of her faith. And she has not seen any need to recuse herself from death-penalty (or abortion or immigration) cases.
Some progressives are trying to portray Barrett’s views on the force of precedent as radical, but this effort depends on willful misreadings of her work. Justice Clarence Thomas has made a strong case that the Supreme Court is too stubborn in sticking with mistaken precedents. Judge Barrett has not said that she agrees with him, that she thinks the Court has it right, or that her view lies somewhere in between. Moreover, this complaint rings hollow coming from progressives who want the Court to overturn its precedents on free speech, religious liberty, and the right to bear arms.
Finally, some Democrats are resorting to the claim that Judge Barrett has too little experience for the Supreme Court, having spent only three years on the federal bench. Never mind that it’s three years more than Justice Elena Kagan had spent on it when President Barack Obama and a Democratic Senate put her on the Court. It’s also more time on the bench than John Roberts had before becoming chief justice.
Perhaps the Democrats will find something more potent in the days ahead; they will certainly look. But if the case against Barrett they have made so far were a lawsuit, it would be thrown out of court as frivolous.