Conservatives Who Want Biden to Win Should Support Amy Coney Barrett

T he Supreme Court nomination of Amy Coney Barrett is good news for Donald Trump and Senate Republicans. As I’ve written before, marginal Republican voters care more about the courts than marginal Democratic voters do. And hearings should be good news for Republicans as well, as Judge Barrett gets to make her case before the cameras, and Democrats are already worried that their senators and activists may come off yet again as mean-spirited extremists who cannot conceal their disdain for faithful Catholicism.

But the nomination is here now, and Democrats cannot stop the hearings from going forward. Absent a major surprise, they likely can neither delay a vote nor prevent Barrett from being confirmed. What is a Biden supporter to do?

For one group of Biden supporters, the answer should be simple. Conservatives, or conservative-leaning voters, who are supporting Biden should support Barrett’s confirmation before Election Day and should want that confirmation to avoid any major controversies or culture-war battles.

This gets to the seemingly never-ending debate about Republicans and conservatives who took a Never Trump stance in 2016 — and particularly, the subset of those Republicans and conservatives who (1) profess to still be conservatives and believers in all the things conservatives believed in before 2015, but who (2) have come to the conclusion that Donald Trump, for various well-known reasons, is unfit for the presidency and should be replaced by Joe Biden. Whether or not you agree with this stance, it is a morally serious position that flows from the premise that having Trump in office is so dangerous that accepting the consequences of a Biden administration would be worth it to be rid of Trump. (I would argue that it ceases to be a morally serious or coherent stance once you start also arguing that Biden should have a Democratic Senate majority to work with, but that’s another day’s debate.)

If these are your premises, how do you evaluate the Barrett nomination? If you were a Republican or a conservative before June 2015, you almost certainly would have supported Judge Barrett as a Supreme Court nominee. Even if you think the benefit of stocking the courts with serious, rigorous, originalist, textualist, constitutionalist judges is not worth the costs of a Trump presidency, it is hard for any conservative of any stripe to say that it is not, by itself, a good thing.

In fact, if you are making the case for a Biden presidency, there are few bigger obstacles than the Supreme Court. The Court’s decisions on important matters are winner-take-all and long-lasting, and they frequently hang on one vote. Electing Biden would mean surrendering a lot, long-term. But if Barrett is confirmed, the case for Biden becomes easier to swallow. A month ago, a President Biden looked likely to get a Supreme Court vacancy, and quite possibly two, in his first two years in office, solidifying the four-justice liberal bloc for years to come and putting Democrats in striking distance of a loyal liberal majority on the Court.

With Barrett confirmed, however, there will be six Republican appointees on the Court, three of them between the ages of 48 and 53, and none older than 72. The most “liberal” of these is Chief Justice John Roberts, whose record is still well to the right of Anthony Kennedy’s. While we never know what lies ahead, the only justice likely to step down in 2021 or 2022 is Stephen Breyer, who will turn 84 before the 2022 midterm elections. Even if Democrats were to win a Senate majority, it would probably be one that was deeply imperiled by the 2022 Senate elections, and that would make it harder sledding for the Biden-Harris administration the rest of the way. And then Biden or Harris would run for reelection, most likely against someone other than Donald Trump, at which point anti-Trump Republicans and conservatives could come home (in fact, they could before then, to join the 2024 nomination fight).

Taking fear of losing the Court off the table could help win over more voters to Biden who think this way. But doing so would require avoiding a reprise of 2018, when the deplorable behavior of Democrats (such as Kamala Harris reading into the Senate record the obviously, patently false conspiracy theory that Brett Kavanaugh was involved in a gang-rape ring as a teenager) reminded so many wavering Republican voters why they were Republicans in the first place. It would require avoiding a replay of past confirmation hearings that targeted Barrett and other nominees for their Catholic faith and for belonging to Catholic groups. It would require, in short, keeping a muzzle on Senate Democrats and progressive activists to prevent them from accidentally saying out loud what they think. That would involve a difficult balancing act, because florid cultural rage against Barrett can help fire up Democratic activists, too — and many progressives would rather run a risk of a Biden defeat than wake up on January 21 and learn that the Biden-Harris administration needs centrist voters more than it needs Catholic-bashing left-wingers.

The fig leaf that some ex-Republicans have clung to is that Barrett, simply by accepting this appointment, cannot be trusted to rule fairly on the bench, especially in any potential contest over the 2020 election. Of course, the 2020 election might not be that close, and as I have explained, the Court will probably try to steer clear of it. It is also a dubious assumption on the part of any conservative that the Court’s conservatives would rule in Trump’s favor unless there was a serious constitutionalist case for doing so. In Bush v. Gore, the Court’s two liberal Republican appointees (David Souter and John Paul Stevens) joined the two Democrat appointees in backing Al Gore, and two moderate Republican appointees (Kennedy and Sandra Day O’Connor) adopted a still-controversial view of the 14th Amendment in ruling for George W. Bush. But the Court’s three conservatives (Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas) took a solidly originalist view of an alternative ground for ruling in Bush’s favor. While they have been criticized for also joining the Kennedy-O’Connor opinion, they were ultimately endorsing a result that flowed from their philosophical reading of the text. Barrett, fresh to the Court after two decades in the academy, is unlikely to grasp for a flimsy rationale to do something just to get a political outcome a month into her tenure. If you insist on believing otherwise of a woman with Barrett’s background, you probably aren’t a conservative anymore.

At least some vocally conservative Trump critics have reached the pro-Biden/pro-Barrett conclusion. George Conway, a co-founder of the Lincoln Project whose devotion to removing Trump in 2020 is beyond question, publicly supports Barrett, saying that she is “eminently qualified to serve on the Supreme Court” and that he has “no reason to doubt her fairness or integrity.”

Of course, progressive activists and Democrats such as Harris are not helping this cause of wooing conservatives to Biden when they advocate such structural schemes as court-packing, admitting new states, bulldozing the filibuster, and attacking the Electoral College — all aimed at turning 2020 into a referendum on whether to tip the scales of the American system permanently toward the Democrats. Nobody who liked the Republican Party the way it was before Trump, and who hopes to rejoin something like it again, can be on board for any of that. But if you’re serious about your conservatism and also serious about getting rid of Donald Trump, the right place to be is supporting Amy Coney Barrett for the Supreme Court.