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Barrett confirmed as 115th justice

The Senate on Monday night confirmed Judge Amy Coney Barrett as the 115th justice of the U.S. Supreme Court and the fifth woman to serve on the court. The 48-year-old Barrett fills the seat previously held by Justice Ruth Bader Ginsburg, who died on Sept. 18 of complications from pancreatic cancer.

The 52-48 vote capped a meteoric rise for Barrett, who spent almost all of her career as a law professor who was well regarded but little known outside academic circles. And for conservatives, the vote represented the culmination of a decades-long effort to move the ideological balance on the court solidly to the right. In contrast to Ginsburg, who spent nearly three decades as one of the court’s most reliably liberal votes, Barrett has said that her judicial philosophy is similar to that of the late conservative hero Justice Antonin Scalia, for whom Barrett served as a law clerk.

Democrats decried the decision to confirm Barrett less than two weeks before the upcoming presidential election, and Senate Minority Leader Chuck Schumer (D-N.Y.) warned that the “American people will suffer the consequences of Judge Barrett’s far-right, out-of-the-mainstream views for generations.”

Barrett catapulted onto the national scene in 2017, during the confirmation hearings for her seat on the U.S. Court of Appeals for the 7th Circuit. Democrats on the Senate Judiciary Committee suggested that Barrett, who is a devout Catholic, might allow her faith to influence her judging – an allegation that Barrett staunchly denied. And perhaps most notably, Sen. Dianne Feinstein of California told Barrett that, based on Barrett’s speeches, “the conclusion one draws is that the dogma lives loudly within you.” Feinstein’s rhetoric did not keep Barrett from being confirmed to the court of appeals, by a vote of 55 to 43, on Oct. 31, 2017. In fact, it may have had the opposite effect: Conservative Catholics adopted the phrase as a rallying cry, putting it on coffee mugs and t-shirts, and Barrett’s name was one of five names added in November 2017 to President Donald Trump’s list of potential nominees to the Supreme Court.

When Justice Anthony Kennedy retired from the Supreme Court in June 2018, Barrett was allegedly among the finalists to fill the vacancy. The job would go to Justice Brett Kavanaugh, but Trump reportedly told his advisers that he was “saving” Barrett in case Ginsburg were to leave the court during his presidency.

Barrett’s nomination and confirmation process played out against the backdrop of President Barack Obama’s March 2016 nomination of Merrick Garland, the highly respected chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to fill the vacancy created by Scalia’s 2016 death. Senate Republicans refused to hold a hearing for Garland, then 63 years old and generally regarded as a more centrist nominee. They maintained that it was too close to the upcoming presidential election, and that the next president, rather than Obama, should choose the new nominee. The seat remained open until April 2017, when Justice Neil Gorsuch, Trump’s first Supreme Court nominee, was confirmed.

Senate Majority Leader Mitch McConnell (R-Ky.) paved the way for Barrett’s 2020 nomination last year. When asked at a May 2019 luncheon in Kentucky whether he would fill a vacancy if a Supreme Court justice were to leave the court in 2020, McConnell responded that he would. The difference between such an opening and the situation in 2016, McConnell explained, was that the White House and the Senate in 2016 were controlled by different political parties, while Republicans now hold both the Senate and the White House. But although Ginsburg had announced in December 2018 that she had been treated for lung cancer (the third of what would eventually prove to be five cancer diagnoses), the vacancy was at the time purely a hypothetical one.

The hypothetical became real after Ginsburg’s death in September, and McConnell pledged to fill the vacancy quickly. The president was reportedly considering Barrett and two other women – Judge Barbara Lagoa, of the U.S. Court of Appeals for the 11th Circuit, and Judge Allison Jones Rushing, of the U.S. Court of Appeals for the 4th Circuit – to fill the opening left by Ginsburg’s death. But it’s not clear that either woman was ever actually seriously in the running, as the president offered Barrett the job on Sept. 21 and nominated her on Sept. 26, in a ceremony at the White House that was notable for the dearth of masks and social distancing. At least 11 people who attended the ceremony later tested positive for COVID-19, including the president, two senators, and former New Jersey Gov. Chris Christie.

By the time Barrett’s confirmation hearings began on Oct. 12, Democrats had few options to stop the nomination. Instead, they frequently argued that, if confirmed, Barrett would provide a key vote to strike down the Affordable Care Act’s individual mandate and, with it, the rest of the law when the Supreme Court hears oral argument on Nov. 10 in a challenge to the mandate.

Republican senators emphasized Barrett’s qualifications for the job and her commitment to following the original meaning of the Constitution. Some senators, like Josh Hawley of Missouri, also condemned what they portrayed as attacks on Barrett’s religion.

When the Senate Judiciary Committee met on Oct. 22 to consider whether to send Barrett’s nomination to the full Senate, Democratic senators were not there. Knowing they did not have the votes to stop the nomination from moving forward, several of them left photos of their constituents to fill their chairs – a move intended to symbolize the people who would be hurt if the ACA were struck down. Without any Democratic opposition, Barrett’s nomination was voted out of committee unanimously.

Going into Monday’s final vote, there was little suspense about how the vote might turn out. Sen. Lisa Murkowski (R-Alaska) had opposed moving forward with the confirmation process this close to the election, but she announced on Saturday that she would support Barrett’s confirmation. Sen. Susan Collins (R-Maine), who had voted two years ago to confirm Kavanaugh, announced that she would vote against Barrett. No Democrats crossed party lines to vote for Barrett.

In a ceremony at the White House shortly after the vote, Justice Clarence Thomas administered the constitutional oath, one of the two oaths that Barrett must take. The Supreme Court’s Public Information Office announced on Monday night that Chief Justice John Roberts would administer the second oath, the judicial oath, on Tuesday in a private ceremony at the Supreme Court. After taking that second oath, Barrett will be able to participate in the court’s work.

The workload that Barrett will face immediately is substantial: The justices are scheduled to meet for a private conference to consider new additions to their merits docket on Friday morning, and they will begin the November argument session on Monday, Nov. 2. The court is also grappling with a busy diet of emergency appeals, including a plea from North Carolina Republicans to block an extension of the deadline for mail-in ballots and a request from Trump to put on hold a subpoena for his financial records.

This article was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Barrett confirmed as 115th justice, SCOTUSblog (Oct. 26, 2020, 11:34 PM),