The COVID-19 outbreak that infected Donald Trump has roiled the nation, but it hasn’t upended Amy Coney Barrett’s Supreme Court nomination. That’s good news.
As I have argued from the beginning, Never Trump conservatives (meaning people who remain conservative but will not vote for Donald Trump), should be rooting for Barrett’s confirmation. While some have decided to throw the conservative baby out with the squalid Trump bathwater, getting Barrett on the high court would be but a small consolation prize for having to endure these last four years.
So here’s my message for the conservatives: Don’t get wobbly. Don’t stop believing. It’s full speed ahead.
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Nothing has changed in the last week that should give Republicans pause. Mitch McConnell has said he won’t alter the hearings—nor should he. And while announcing his decision to suspend COVID-19 stimulus negotiations, Trump advised “Mitch McConnell [to] not to delay, but to instead focus full time on approving my outstanding nominee to the United States Supreme Court, Amy Coney Barrett.”
Walking away from stimulus negotiations seems bizarre and stupid, but the decision to stick with Barrett makes perfect sense. Despite the recent turmoil, there is no procedural reason to back down from her confirmation, no substantive reason to back down from her confirmation, and no political reason to back down from her confirmation.
Let’s start with process. The president, for all his faults (and they are legion) still had every right to fill a vacancy that opened during his term, just as the Senate still has every right to confirm her (or not). Nothing has changed about that.
That doesn’t mean that things haven’t gotten more, shall we say, complicated. Republican Senators Mike Lee of Utah and Thom Tillis of North Carolina, both members of the Judiciary Committee, have tested positive for COVID-19. Other senators were in contact with them, which presumably means they were exposed to the virus.
The good news is that committee hearings aren’t set to begin until Oct. 12 and the full Senate won’t reconvene until Oct. 19. Because the Judiciary Committee has, for months now, allowed committee members to attend virtually, Lee or Tillis wouldn’t have to physically appear until Oct. 22—when the Judiciary Committee will report her nomination to the floor of the Senate.
As long as no other senators are infected between now and then (a huge asterisk, to be sure), Republicans have more than enough quarantine time. All Democrats can do is complain. They have no procedural cards left to play (and yeah, they can thank Harry Reid for that).
But what about the substance? Again, there’s no change to report. Barrett remains the same highly qualified nominee who has already been confirmed as a judge to the U.S. Court of Appeals for the Seventh Circuit. Prior to that, she has been a law professor at Notre Dame Law School since 2002, thrice selected by graduating students as "Distinguished Professor of the Year.” And prior to that, she clerked for Associate Justice Antonin Scalia of the U.S. Supreme Court.
Barrett’s intellect and character have been hailed by colleagues and associates across the political spectrum. Nothing that has happened in the last week has changed any of that. On the merits, this is still a great nomination.
Of course, ideology is now also a factor in confirmation battles. Progressives have every reason to oppose this nomination—just as they did from the beginning. Likewise, conservatives who prefer judges whose worldview and judicial philosophy is in keeping with Justice Antonin Scalia’s have every reason to cheer the lifetime appointment of Scalia’s former law clerk.
Even if you think Trump is scummy (I do!)—and even if you think Senate Republicans enabled and emboldened his worst instincts (I do!)—there’s no substantive reason for any conservative to be anything other than giddy about this nominee.
True, conservative nominees haven't always delivered everything conservatives want—and sometimes this is fortuitous. A lawsuit threatening the fate of the Affordable Care Act is likely to be the next example. As Ramesh Ponnuru explains, there's no reason to believe that Barrett (or any of the other conservatives on the court) will support this legal challenge against Obamacare.
Another important issue is abortion. As someone who believes in the right to life of the unborn, I suspect Barrett, a devout and conservative Catholic, shares my worldview. Having said that, any change, should it come, would probably be incremental. In 2013, Barrett said “The fundamental element, that the woman has a right to choose abortion, will probably stand," adding that the "controversy right now is about funding. It’s a question of whether abortions will be publicly or privately funded.”
Yet another hot-button issue involves gay and LGTBQ rights. Most of the conservatives I know don’t care how other people choose to live their lives, but draw the line at coercion. They understandably balk at being forced to use a politically correct pronoun—or otherwise being coerced into violating their religious convictions or right of conscience. Last term, the court showed signs it could balance LGBT rights and religious liberty. My hope and expectation is that Barrett would continue this trend.
If you’re a conservative, you’re probably happy with this pick. If you’re a progressive, you’re probably not. But Barrett is clearly qualified, and she’s clearly within the mainstream of American conservative thought. She’s not some Trumpy QAnon pick. And nothing that has happened in the last week has changed the fact that she’s a qualified nominee.
But what about the political considerations? After all, even a lifetime Supreme Court justice might be a pyrrhic victory if it causes Republicans to lose the presidency and the U.S. Senate.
The Republican COVID outbreak adds one more asterisk to what was already a controversial nomination, but there’s no reason to think the 2020 political cake isn't already baked. Barring some sort of miracle, Trump is toast.
Presumably, McConnell understands the political dynamics confronting his Senate constituency better than most of us, has more at stake than the rest of us, and has calculated this nomination is still worth fighting for. Besides, if Republicans go on to lose the Senate (as they very well might), you can thank Donald Trump’s million other mistakes.
Likewise, Democrats were threatening to blow up the legislative filibuster, pursue D.C. and Puerto Rican statehood, and pack the courts, long before this nomination. Maybe they’ll do it, and maybe they won’t. Backing down now—on your one big chance to put points on the board—won’t matter.
There aren’t any compelling reasons (procedurally, substantively, or politically) to pump the breaks, so why am I seeing reports about how the positive COVID-19 tests are raising questions about/upending the GOP’s confirmation plans?
Hovering over the confirmation battle is an unspoken, if irrational, notion that the Rose Garden ceremony was the “superspreader” event, and therefore this nomination, from its inception, was tainted.
We don’t even know for sure if the Rose Garden event caused the outbreak, but regardless, one could hardly blame Barrett for people sitting too close and not wearing masks.
Of course, the obvious answer is simply that Democrats are desperate to delay this nomination, in hopes that this will buy them enough time to derail it. But they are playing a poor hand. Their only hopes are that more Senate Republicans get sick in the coming days—a macabre card to hope to draw.
Unless that happens, McConnell deals the cards. And for this hand, at least, I’m glad he does.
