On February 15, 2016, Notre Dame law professor Amy Barrett talked on CBS about filling the vacancy left by Justice Antonin Scalia’s death two days previously. Because that interview is being misrepresented in various quarters, I’m going to go through what she said.
The first relevant portion comes at 3:20 in this clip. Barrett is asked about Senator Marco Rubio’s claim that presidents don’t nominate justices during election years. (Which was slightly different from what Rubio had said.) Barrett says she does not think that claim is true. She then says the precedents don’t establish a rule that favors either side of the partisan argument over the vacancy.
She notes that when the Senate and the White House are controlled by the same party, nominations in that situation are, unsurprisingly, more likely to lead to confirmation than when they are not. She brings up Justice Anthony Kennedy’s confirmation as an example of a confirmation under divided government in an election year. She says that the case of Kennedy is “distinguishable” from the vacancy of the moment because it had arisen before the election year and because Kennedy was, like the justice he replaced, a “moderate Republican.” It was not a nomination that could “dramatically flip the balance of power on the court.” Finally, she notes, “we live in a different time.” Confirmation hearings have gotten more contentious since the fight over Robert Bork.
“And so I think, in sum, the President has the power to nominate and the Senate has the power to act or not, and I don’t think either one of them can claim that there’s a rule governing one way or the other.”
Some media outlets are saying that Barrett had cautioned against changing the balance of the Court in an election year. (Newsweek’s headline, “In Resurfaced Clip, Amy Coney Barrett Says it Would’ve Been Inappropriate for Obama to Nominate SCOTUS Judge Who Could ‘Flip Balance of Power,’” goes even further, fairly explicitly contradicting what she said about the nomination power.)
But she didn’t say or even imply that. She wasn’t advocating any particular course of action. She was instead commenting on an unfolding debate.
Her largest point, the one with which she started and ended, was that the Democratic president and the Republican Senate both had constitutional freedom of action. Her main subsidiary point was that politics influenced how that freedom would be exercised. An opposition-controlled Senate would look less favorably on a nominee; it would be especially concerned about an adverse shift in the balance of the Court. Note that she immediately segued to the changing political atmosphere of Supreme Court confirmations. I don’t think anyone would claim that she was endorsing the increasing heat of confirmation debates.
In the current case, it’s entirely reasonable for the opposition party to be especially concerned that a Trump nominee’s replacement of Justice Ginsburg would push the Supreme Court away from its preferred approach to judging. What she said in 2016 is still true: The president has the power to nominate, and the Senate has the right to take up the nomination or not.