By Rich Lowry
Tuesday, October 06, 2020
The Supreme Court fight of the century is, so far, a
fizzle.
The ratio of progressive outrage over the nomination of
federal Judge Amy Coney Barrett to supposed reasons that the U.S. Senate
shouldn’t confirm her is completely out of whack — there’s a surfeit of the
former and almost none of the latter.
Barrett has received extraordinary testimonials from her
colleagues and students, who say she is brilliant, conscientious, and kind. The
opposition has countered with a dog’s breakfast of nonsense, including that her
confirmation hearing can’t be held in the middle of a pandemic — when the
Senate has continued its business since the pandemic began.
Upon her selection, media outlets ran a spate of stories
about her reported membership in a Catholic group called People of Praise,
linking the group to the dystopian novel The Handmaid’s Tale. What
Barrett’s life and career have to do with the imagined misogynistic world of
the novel was never clear — she’s a mother of seven who has ascended to the
very top of her profession with the help of a supportive husband.
Barrett’s social conservatism has been another line of
attack. Her critics have fastened on the fact that she signed a statement in
2006 declaring her opposition to abortion. It’s not news that Barrett is
pro-life, nor should it be disqualifying unless progressives believe that
anyone with a view counter to theirs on a hotly contested moral issue should
be, on principle, excluded from the highest court.
It is not true, as has been widely reported, that Barrett
said in that same statement that Roe v. Wade should be overturned
(Barrett had nothing to do with an ad denouncing Roe that ran adjacent
to the statement).
The group that organized the anti-abortion statement also
opposes IVF, as commonly practiced, leading Democrats to conclude that Barrett
does, too. Regardless, the Supreme Court obviously doesn’t police the nation’s
fertility clinics.
Barrett has also been portrayed as a threat to Obamacare,
given that the Court will hear an anti-Obamacare lawsuit shortly after the
election. But the merits of the suit are so weak, it conceivably could lose
9-0.
If it means anything, just last month Barrett
participated with seven other judges in a moot court at William & Mary Law
School on the Obamacare case. As the Los Angeles Times reports, “None of
the judges ruled in favor of the administration and Republican states’ request
to strike down the law.”
It is alleged that Barrett would take a sledgehammer to
precedent, but she wrote in a 2013 law-review article that the Court’s
traditional approach to stare decisis “promotes doctrinal stability while still
accommodating pluralism on the Court.”
Her critics point to a 2016 TV interview in which she
commented about the vacancy created by the death of Antonin Scalia, alleging
that she herself warned against appointments changing the ideological balance
of the Court in an election year. To the contrary, the crux of her analysis was
that the president has the power to nominate and the Senate the power to
confirm or not.
Since progressives haven’t gotten traction with any
substantive arguments against Barrett, they’ve been relying on dubious process
arguments. Not only is it wrong, they charge, to confirm a justice so close to
an election, it’s a public-health danger to do so now when three Republican
senators have tested positive. As a headline in the online magazine Slate
put it, “The GOP will still seat Amy Coney Barrett because entrenching minority
rule is more important than human life.”
This is laughable. First, it’s a long-standing norm that
when the president and the Senate majority are of the same party, Supreme Court
nominees get confirmed in an election year. Second, the Senate Judiciary
Committee has already been holding hybrid in-person and virtual hearings all
year. There’s no reason it can’t do the same with Barrett next week.
At this rate, the Barrett confirmation is going to be the
epic battle that wasn’t.
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