Facebook Twitter

No, it isn’t fair, but the Senate should move forward with Amy Coney Barrett

We should’ve had a Justice Garland, but two wrongs don’t make a right — so we should have a Justice Barrett, too.

SHARE No, it isn’t fair, but the Senate should move forward with Amy Coney Barrett
AP20273529116991.jpg

Supreme Court nominee Judge Amy Coney Barrett looks over to Senate Majority Leader Mitch McConnell of Ky. as they meet with on Capitol Hill in Washington on Tuesday, Sept. 29, 2020.

Susan Walsh, Associated Press

With the announcement over the weekend of Amy Coney Barrett as President Donald Trump’s nominee to replace the late Justice Ruth Bader Ginsburg on the Supreme Court, the president and his Republican allies in the Senate have angled one step closer to a total 180-degree flip-flop from their 2016 stance. And though it’s unfair to the Democrats who correctly point out the right’s hypocrisy, confirming Barrett as the next associate justice of the Supreme Court is the right thing to do.

Article II, Section 2 of the U.S. Constitution states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court.” It’s pretty straightforward: It’s the president’s job to nominate justices, and it’s the Senate’s job to advise and give consent to the nominations. Notice the Constitution doesn’t say it’s the next president’s job or the next Senate’s job; it mandates that it’s the responsibility of the current ruling powers.

That responsibility should rightly be taken now in 2020, and it should’ve been taken in 2016. At the time, Senate Majority Leader Mitch McConnell justified the delay of the Senate’s part of the job by claiming “precedent” — a term that doesn’t officially mean much but seems to take on a kind of worshipful reverence whenever politicians start talking about the judiciary — and now both sides are claiming precedent to justify their stances this year. The thing about precedents, though, is that — go figure — they can be bad. And bad ones should be overturned.

McConnell may not have set a bad precedent in 2016, but he did solidify one. And both parties have now at one time or another insisted that voters should have a say, by way of a presidential election, in who gets nominated to the court. Well, they did have a say — nearly four years ago. The American people don’t elect presidents to serve for three years and then sit idle during the fourth; they elect presidents to govern for a full, four-year term — which means that the sitting president should be making decisions right up until Inauguration Day the following year.

The American people don’t elect presidents to serve for three years and then sit idle during the fourth; they elect presidents to govern for a full, four-year term — which means that the sitting president should be making decisions right up until Inauguration Day the following year.

And though Republicans’ hypocrisy is on full, blatant display this cycle, Democrats’ hands aren’t any cleaner in the messy battle that Supreme Court nominations have become. The Washington Post’s Megan McArdle explores some of the historical details of the court wars, writing that “everyone has a bad case of strategic amnesia about their own side’s escalations” and “by the time you’re in the 18th round, with everyone intent on punishing the punishment-for-the-punishment, the strategy has not only failed, but also backfired.”

As McArdle observes, it’s difficult to pinpoint when these court wars began or who’s to blame for them. It might be easy to target Republicans due to their current antics, but one needn’t go back any further than the aftermath of the Merrick Garland kerfuffle to see Democrats playing dirty. Rather than voting appropriately to confirm the eminently qualified Neil Gorsuch, Senate Democrats instead filibustered him and then almost unanimously voted against him out of spite. (Consider RBG, liberal icon and Clinton appointee herself, whose nomination was opposed by only three Republicans. When the nominee is as qualified as Ginsburg and Gorsuch and Garland, that’s how these things are supposed to work.)

Barrett, too, is eminently qualified; even her ideological opponents say so. So if Democrats want to rise above the fray, they’ll vote near-unanimously to confirm her — but of course, they’ve given every indication they intend to fight just as dirty as Republicans. Last week, a guest author argued in the Deseret News that a constitutional amendment may be the only way to stop the never-ending court wars. He may be right, but such an amendment should guarantee a Senate vote on a presidential nominee, not prevent it.

By all indications, we should’ve had a Justice Garland, but umpteen wrongs won’t ever make a right — so we should have a Justice Barrett, too. Rather than exacerbating the continuous blame game, it’s past time for Congress to just do its constitutional duty.