Below is my column in USA Today on the troubling course taken by Democratic members in the confirmation hearing of Judge Amy Coney Barrett. As I have stated, there are a host of legitimate questions to be raised over Judge Barrett’s view of the law. Indeed, I praised the exchanges between Sen. Dick Durbin (D., IL.) and Judge Barrett as the substantive highlight of the hearing. Unfortunately, those were the exceptions. Instead, the thrust of the entire hearing was that Barrett was unqualified due to her expected vote in the upcoming case on the Affordable Care Act (ACA). Various senators directly stated that they would vote against Barrett to protect the ACA. That is what is so unnerving about the Barrett confirmation hearing.
Here is the column:
The confirmation hearing of Judge Amy Coney Barrett could easily have been mistaken for the sentencing hearing for John Wayne Gacy. Surrounding Barrett were huge pictures of sick individuals. One would think that Barrett was being confronted with the faces of her victims. In reality, the pictures perfectly captured a far more important message. Senators had finally broken free from any pretense of principle in reviewing the qualifications of a nominee. Indeed, many are about to create a new rule, the Barrett Rule, allowing conditional confirmation voting. The pictures were meant to pressure Barrett to either satisfy senators that she would vote against an Affordable Care Act challenge or they would vote against her confirmation.
There has long been a debate over the legitimate grounds for opposing a Supreme Court nominee. While senators can vote under the Constitution for good, bad or no reason at all, most have sought to justify their votes on some principled basis. For most of our history, senators followed the rule that disagreement with a nominee’s jurisprudential views was not a basis to vote against their confirmation. A president was viewed as constitutionally entitled to appoint jurists reflecting their own legal viewpoint and the primary basis for voting against a nominee was on the lack of qualifications or some disqualifying personal or professional controversy. It was a rule of senatorial deference that controlled the majority of nominations in our history.
Voting against nominees based on their expected votes
Members began to chafe at the limitations of this principle in the second half of the twentieth century. With abortion, desegregation and other hot button issues, confirmations became politics by another means. With every year, senators became more open about voting against nominees solely on the basis for their expected votes. This trend was accelerated in October 1987 in the confirmation hearing of Judge Robert Bork presided over by a senator from Delaware named Joe Biden. Bork was labeled “outside of the mainstream” of legal thought and rejected in a process that is now called “Borking.”
Democratic members have struggled with changing rationales for voting against Barrett, who has impeccable credentials as an accomplished academic and respected jurist. One such implausible claim was made the day before the hearing by Sen. Chris Coons (D., Del.) on Fox News Sunday. He claimed the nomination “constitutes court packing.” Both Biden and his running mate Sen. Kamala Harris (D., Cal.) have referred to nominating conservatives as court packing. Biden and others have refused to tell voters whether they will move to pack the Supreme Court if the Democrats retake both the Senate and the White House (a proposal once denounced by Ruth Bader Ginsburg herself). Instead of answering, Coons and others insist that Barrett’s nomination is court packing — a position that would allow them to vote against her without the need to consider her actual qualifications.
The portrayal of the Barrett nomination as court packing is facially absurd. Court packing is the expansion of the Court to create a dominant ideological majority. Referring to such a proposal by Franklin Delano Roosevelt, then Sen. Joe Biden once denounced it as “a bonehead idea . . . a terrible, terrible mistake” in seeking to add seats to the Court just to create a majority. Filling a vacancy on the Supreme Court is not court packing under any remotely plausible definition. Otherwise, anytime you disagree with the choices of a president, it would be court packing despite leaving the court the same size.
With little traction on the packing pitch, Senators were left with a rare moment of clarity. Indeed, Sen. Cory Booker (D., NJ) captured it best when, without waiting to hear from Barrett, Booker announced that he would vote against her. The reason was that she might vote against the ACA. The clear suggestion is that, after an election, the Democrats hoped to nominate someone who would clearly support the ACA. The issue was simply her expected vote on Nov. 10 in the case of California v. Texas.
Barrett and the ACA
We have now reached the Rubicon of confirmation politics. Thirty-three years after the Bork hearing, senators are now stripping away any pretense or nuance: they will oppose Barrett because of her expected votes on cases. In particular, Democrats have been arguing that they will vote against Barrett to prevent her from voting on a pending case, California v. Texas, dealing with the constitutionality of the ACA. Sen. Mazie K. Hirono (D., HI) announced recently that she would vote against Barrett because “she will vote to strike down the Affordable Care Act.”
In reality, the ACA case is unlikely to be struck down. The Court may uphold the lower court in declaring the individual mandate of the original ACA to be unconstitutional, but the real issue is whether that provision can be “severed” from the rest of the statute. Most legal experts believe that the Court has a clear majority favoring severance and preserving the rest of the act. The law was originally saved by Chief Justice John Roberts who felt that the individual mandate was constitutional. Congress later nullified the mandate.
The question before the Court is whether the rest of the act can be “severed” from the now defunct mandate — a question that cuts across the Court’s ideological divisions. Indeed, conservatives like Roberts and Brett Kavanaugh are expected to uphold the rest of the law. Thus, despite the pictures in the hearing, the picture for the ACA looks solid even with a Justice Barrett on the Court. Indeed, no one knows how Barrett would vote on the issue of severability.
The more important decision in the hearing is that some Senators are now invoking the right to vote against a nominee on the basis of her expected vote on this pending case. It will be a uniquely ironic moment since it was Ginsburg who refused to answer questions on pending or expected cases as improper and unethical inquiries by the Senate. It became known as the “Ginsburg Rule.” We may now have the Barrett Rule where a nomination can be rejected without such assurances.
The Barrett Rule would allow not only for the packing of a Court but the packing of the Court with guaranteed ideological drones. It is court packing without any pretense. Like our current politics, it would finally strip away any nuance or nicety. The court, like Congress, would become subject to raw and brutal politics at its very worst.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s Board of Contributors. Follow him on Twitter: @JonathanTurley