The Corner

Law & the Courts

Whose Seat?

Amy Coney Barrett is confirmed. And I think there are two little things to say about it. The first is that we very likely have in Barrett the true successor to Antonin Scalia on the Court. Barrett clerked for Scalia and her articulation of his philosophy is probably the most faithful on the court. Justices Gorsuch and Kavanaugh have already proven to be different in their own ways. It only took President Trump the better part of four years and three tries to get to it.

Some of Barrett’s opponents and critics hate the idea of her being in “Ruth Bader Ginsburg’s seat.” But the individual justices don’t own their seats. And Ginsburg’s jurisprudence does not define the seat. Remember that Ginsburg filled a vacancy left by Byron White. And for those keeping score ideologically, Byron White was a dissent in the ruling in Roe versus Wade. If liberals can say that they have “lost” a seat, conservatives may just as well say that this is a seat that “reclaimed,” rather than a true advance.

This confirmation may be the last incoming tide of the Trump presidency for conservatives. But, I think instead of looking at the work that Senate leader Mitch McConnell and President Trump did on the judiciary as the crowning achievement of the conservative legal movement, it should instead be seen as a good start. The terms of American politics may begin to change, and the balance of this Court may change as the cases change. We may very well see a future Democratic president replace Justice Thomas or Alito.

Conservatives who are in other fields and endeavors — academia, media, and entertainment — might look to the conservative legal movement for lessons to adapt.


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