Putting the Barrett Nomination in Perspective

The nomination of circuit court of appeals judge Amy Coney Barrett to the Supreme Court has brought us once again to the silly season in American politics. To be fair, we have been in a silly season for quite some time, but the hyperventilating over this nomination has made it sillier than usual. Barrett has already been through a confirmation process for her current position, a process that saw her religious views come under the microscope, despite the Constitution’s Article VI prohibition on religious tests for office. In the run-up to this new nomination, several pundits have linked her religious affiliation to The Handmaid’s Tale and her adoption practices to the Nazis.

Let me try to interject some perspective — historical and constitutional.

People accuse Republicans of being hypocritical since they denied Obama pick Merrick Garland a hearing in the last election year. I’ll paraphrase Claude Rains’ character from Casablanca: I’m SHOCKED, SHOCKED, to find that politicians are hypocritical! When it comes to court nominations and the use of the filibuster and even the dynamics of impeachment, there is enough hypocrisy on both sides to last a lifetime.

Some people seem very concerned that the Barrett pick could alter the balance of the Court. Welcome to Earth. The Court’s balance has been altering since day one. Poor Franklin Roosevelt didn’t get one nomination in his first term. Then he strung together eight in a row over the next eight years, making him the biggest influence on the Court since George Washington. If a Biden presidency leads to three straight Democratic presidential terms, the Court balance will likely shift right back.

Some are arguing that this is an “illegitimate process.” There is certainly nothing unconstitutional about the nomination. A president’s status as a constitutional officer does not wax and wane with the political season. There may be political reasons why a president can’t get his way, but he is as much a president in the final months of his term as he is in the initial months of his term. In fact, the office was designed to be at least partially immunized from popular pressures. Making a court nomination is not an impeachable offense.

There is also nothing sacred about the length of a confirmation process. Since Barrett has already gone through this once, we should expect the process to be somewhat shorter. It may interest readers to know that Harry Truman made four nominations during his presidency, and the average length of those confirmation processes was 12 days. One of his picks was confirmed on voice vote the day the nomination was made. Our confirmation process is certainly longer now, but that may just indicate something wrong with how we do modern confirmations.

There is also nothing unprecedented about having a nomination process in an election year. All of this has happened before — and all of this will happen again. Very early in our history, a president who LOST his reelection bid made a Supreme Court nomination after his election defeat and before the inauguration of his successor. That man was John Adams, and his pick was John Marshall, generally recognized to be the nation’s greatest Supreme Court justice.

This is all happening because of the confluence of mortality and institutional control. For over 30 years, a process that was once focused primarily on questions of competence and fitness for office has become a ping-pong game centered on ideology, with abortion the principal concern. That is one of the perverted legacies of Roe v. Wade. As for the vitriol seemingly endemic to the process, the origin point was 1987, when Democrats engaged in the character assassination of Reagan nominee Robert Bork. The man who presided over that process — then-chairman of the Senate Judiciary Committee — was none other than Joe Biden.