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The Barrett Battle That Wasn’t

The Barrett Battle That Wasn’t

This confirmation was supposed to be especially hard. How did it turn out to be especially easy?

By Curt Levey
Oct. 29, 2020 12:38 pm ET Wall Street journal

Judge Amy Coney Barrett testifies during her Supreme Court confirmation hearing on Capitol Hill, Oct. 14.
When Brett Kavanaugh was nominated in 2018 to fill the Supreme Court seat vacated by Reagan appointee Anthony Kennedy, the bloodiest high-court confirmation fight in almost 30 years resulted. We could only imagine the fight to the death if President Trump chose a conservative nominee to replace a left-leaning justice, especially liberal icon Ruth Bader Ginsburg. Surely protesters dressed as handmaids would set themselves on fire outside the hearing room.

It didn’t happen. The vote to confirm Justice Amy Coney Barrett was close, 52-48. But her confirmation was never in much doubt, and Senate Democrats made little effort to bloody Judge Barrett. Why?

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A necessary but insufficient reason was the nominee’s qualifications and poise. Senate Democrats couldn’t question Judge Barrett’s intellect, experience, character or temperament. Nonetheless, the conventional wisdom was that a Supreme Court nomination close to a presidential election would make confirmation more difficult, even if the president’s party controlled the Senate. Instead, the election’s proximity seems to have contributed to a smooth confirmation process.

Democrats couldn’t afford to alienate female and Catholic voters by savagely attacking a Catholic mother of seven. Despite a media debate about whether Judge Barrett’s faith would influence her decisions on abortion and other issues, Senate Democrats approached the issue gingerly. They remembered the blowback when they questioned Judge Barrett about her Catholicism at her 2017 hearing for the U.S. Court of Appeals, as well as the damage their rough handling of Justice Kavanaugh did to some Democrats running for the Senate in 2018.

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When Judge Barrett’s hearings began three weeks before the election, Senate Democrats were more focused on scoring electoral points than on roughing up the nominee. Witness their obsessive focus on her purported threat to the Affordable Care Act, a strategy motivated by their belief that health care helped Democrats in 2018.

The conventional wisdom also held that the necessity for a fast confirmation process would further complicate the confirmation. As it turned out, the speed—from nomination to confirmation in 30 days—likely helped ensure her smooth sailing by leaving less time for mischief. Recall that Sen. Dianne Feinstein received Christine Blasey Ford’s sexual-assault accusation three weeks after Judge Kavanaugh’s nomination, then sat on it for six weeks.

The pandemic undoubtedly made for a smoother confirmation process too, because the public was barred from the Senate hearings and even Senate buildings. As a result, unlike in 2018, there were no screaming protesters in the hearing room or Senate halls, or senators accosted in elevators.

As important a factor as any was the speed and decisiveness with which Mr. Trump acted to fill the vacancy on the court and Senate Republicans, led by Majority Leader Mitch McConnell, signaled they had the will and the votes to confirm—all in the face of enormous pressure from Democrats and the mainstream media to leave the seat unfilled until 2021. Any hesitation would have given life to Democrats’ false claims that confirming a Supreme Court nominee in an election year is at odds with precedent and that 30 days is not enough time for a deliberate confirmation process.

The unity Republicans displayed has become more important in this era of bitter partisanship. No longer can a confirmation strategy depend on the votes of senators from the opposition party. In this divisive era, everything has to go right to get a Supreme Court nominee confirmed smoothly. Yet that is exactly what happened as a great nominee, a united Republican party, and factors beyond anyone’s control such as advantageous timing and a pandemic combined to ensure that Justice Barrett’s confirmation was never really in doubt.

Mr. Levey is president of the Committee for Justice, an advocacy group that supported Justice Barrett’s confirmation.

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Harvey Yan


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