When Brett Kavanaugh was nominated in 2018 to fill the Supreme Court seat vacated by Reagan appointee Anthony Kennedy, the bloodiest high-court confirmation fight in almost 30 years resulted. We could only imagine the fight to the death if President Trump chose a conservative nominee to replace a left-leaning justice, especially liberal icon Ruth Bader Ginsburg. Surely protesters dressed as handmaids would set themselves on fire outside the hearing room. It didn’t happen. The vote to confirm Justice Amy Coney Barrett was close, 52-48. But her confirmation was never in much doubt, and Senate Democrats made little effort to bloody Judge Barrett. Why?
We applaud tonight's confirmation of Amy Coney Barrett to the Supreme Court, which is historic for at least two reasons. One, Barrett is the first female conservative justice in the nation's history, despite President Reagan's best intentions when he nominated Sandra Day O’Connor to the Court. Two, for the first time since the 1930's, there is the potential for a true conservative majority on the Supreme Court. While Democrats and the media have long spoken of a "conservative" Court, their assumption that Justices Roberts and Kennedy were conservatives was a fiction. At very least, Barrett's confirmation will go a long way to reassure Americans discouraged by a string of liberal, activist decisions at the end of the Supreme Court's last term.
The Senate Judiciary Committee just approved Judge Barrett's nomination to the Supreme Court and a confirmation vote on the Senate floor is expected next week. So it's a great time to look back on how this confirmation process is going, how it compares to previous Supreme Court nomination fights, and what we can expect to happen on the Senate floor. Our panel of legal experts will also discuss Democrats' court packing threats and the implications of this confirmation battle for the presidential and Senate elections.
The prospect of a new Supreme Court justice brings a renewed focus on many of the Court's controversial doctrines. While much of the speculation on Judge Amy Coney Barret’s nomination has focused on social issues such as abortion, she could be a critical vote in the Court’s future on Chevron deference. Chevron deference— named for the 1984 Supreme Court decision in Chevron v. Natural Resources Defense Council — holds that courts should defer to an agency's interpretation of a statute when its language does not clearly answer the question at issue, provided the agency interpretation is reasonable. This has often allowed agencies to turn statutory ambiguity into a justification for expanding the scope of their authority. This authority now allows agencies to promulgate, enforce, and adjudicate rules in one all-encompassing unelected branch of government.
We applaud the Senate Judiciary Committee's approval today of Judge Amy Coney Barrett's Supreme Court nomination. Democrats' childish tactic of boycotting the vote succeeded only in allowing history to record that Barrett was approved unanimously by the Committee. This was just the latest in a series of failed Democrat tactics to derail her nomination.
After two days of answering questions before the Senate Judiciary Committee, Judge Barrett has clearly demonstrated several things. One is the reason why her intellect and character is widely admired across the legal community. Another is her commitment to textualism and originalism, principles of judicial interpretation that require that our Constitution and other laws be objectively interpreted as written.
Judge Amy Coney Barrett has written opinions on a wide variety of labor issues in her short time on the Seventh Circuit Court of Appeals. Judge Barrett has demonstrated herself to be impartial, rendering rulings in favor of both employers and employees and basing her decisions on a strict factual examination in each case. Like her mentor Justice Scalia, Judge Barrett follows where the law takes her, not where she may wish it would go.
The Democrats have been doing a lot of projecting recently. Consider their worry that President Trump will refuse to accept the legitimacy of the 2020 election. Now they are projecting their "living Constitution" judicial philosophy onto Supreme Court nominee Amy Coney Barrett. Democrats and their allies worry that Judge Barrett, a devout Catholic, will impose her personal values and beliefs on the law. That's exactly what Democrats want the progressive judges they appoint to do. So it's a classic case of projection.
Committee approval and Senate confirmation of Judge Barrett’s nomination before the election is imperative. History shows abundant evidence of quick confirmations. Justice Ginsburg herself was confirmed 42 days after she was nominated. Justice Sandra Day O'Connor's confirmation took 33 days, while Justice John Paul Stevens was confirmed 19 days after being nominated. A more recent example is Chief Justice Roberts’ nomination length as Chief Justice of 23 days. Historical precedent is also on the side of filling the seat. When the same party controls the White House and the Senate, the confirmation process proceeds as usual and the nominee is almost always confirmed. A new justice has been confirmed 8 out of 10 times this has happened.
Following the death of Justice Ruth Bader Ginsburg, the Constitution charges President Donald Trump with the responsibility of nominating her successor, and the Senate with giving their advice and consent. If Republicans are successful at appointing a reliably conservative nominee to fill the vacancy left by Justice Ginsburg, it will be the first solid conservative majority on the court since the 1930s. The stakes are particularly high, the political climate is at its worst, and there are a lot of lingering questions. And unlike Trump, Biden has refused to produce a list of potential nominees. So what kind of judicial nominees will we see in a Biden Administration? And will Democrats attempt to pack the Supreme Court if they control Congress and the presidency? There have already been calls to do so, and court packing proposals have long been part of the Left’s judicial playbook.
But Curt Levey, president of the conservative advocacy group the Committee for Justice, insisted that a Trump appointment would not necessarily spell the end of Roe v Wade, the 1973 ruling that effectively legalised abortion nationwide.
Judicial appointments promise to be a key issue in this fall's presidential and Senate elections. Our panel of legal experts will examine the likely impact of a Trump or Biden victory, as well as control of the Senate, on the Supreme Court and lower federal courts. They will look at hsow the judges isue will impact the election. They'll discuss what President Trump's record of judicial appointments tells us about a second term. Similarly, what do Joe Biden's and Kamala Harris's records tell us about the kind of judicial nominees we'd see in a Biden Administration? And will Democrats attempt to pack the Supreme Court if they control Congress and the presidency?
Founder & President of the Article III Project
Executive Director of the Republican National Lawyers Association
The Supreme Court interpreted Title VII's prohibition against sex discrimination in employment to encompass discrimination based on sexual orientation or identity. The majority opinion in Bostock v. Clayton County, authored by Justice Neil Gorsuch, relied heavily on the text of the 1964 statute. Too heavily – to the exclusion of legislative intent – some critics say. Our panel of Supreme Court and civil rights experts will discuss whether the Court's opinion was a work of principled textualism or an example of judicial activism.
This week, the Supreme Court interpreted Title VII's prohibition against sex discrimination in employment to encompass discrimination based on sexual orientation or identity. The majority opinion in Bostock v. Clayton County, authored by Justice Neil Gorsuch, relied heavily on the text of the 1964 statute. Too heavily – to the exclusion of legislative intent – some critics say. Our panel of Supreme Court and civil rights experts will discuss whether the Court's opinion was a work of principled textualism or an example of judicial activism.