If Democrats questioning Amy Coney Barrett’s qualifications to be the next Supreme Court justice this week are shrewd this time around, they’ll learn from mistakes made in the Brett Kavanaugh confirmation hearing of 2018. They’ll resist any temptation to press, say, some criminal allegation not only unsustained in any court of law but never reported to law enforcement in the first place. They’ll stick rigorously to the nominee’s decisions and dissents, in this latest case from the Chicago-based U.S. Court of Appeals for the Seventh Circuit, as well as Judge Barrett’s writings and speeches. All of these are fair game for close questioning of Barrett as a potential Supreme Court nominee. All raise legitimate concerns about her judicial integrity and personal and political prejudices, including past statements on everything from abortion to the Affordable Care Act.
If she cannot explain her decisions and dissents in detail, then a vote against her is not only fair but warranted.
We appreciate the anger Democrats must feel amidst Republican hypocrisy in pressing to confirm a justice to the high court weeks from a presidential election when almost every Senate Republican in 2016 insisted confirming a Supreme Court justice during an election year should be left to the winner of that presidential contest. While this breach of trust makes it less likely the parties can come together to address our nation’s mounting problems in 2021, Democrats must recognize that, yes, elections do have consequences. In failing to rally some of their usual constituencies in the 2016 presidential election, in nominating a candidate almost as disliked as Donald Trump (given that Hillary Clinton did win the popular vote), Democrats must accept reality. Their battle for ideological balance on the high court is lost.
Some Democrats now vow to scrap the filibuster if they win control of the upper chamber in November. We remind party leaders that this kind of nonsense fails to recognize what in past decades was a far more just and deliberative body. In 2013, Senate Democrats under then-Majority Leader Harry Reid jettisoned the filibuster for executive branch nominees and federal judicial nominees with the exception of Supreme Court nominees. In 2017, Senate Republicans led by Mitch McConnell returned the favor, extending this policy to Supreme Court nominees in order to confirm Justice Neil Gorsuch during the Trump administration. Democrats have been howling ever since, yet much of their fate was determined by earlier, less-than-precipitous maneuvers when they ran the show.
None of this speaks well of federal governance and consensus-building in the future, regardless of who wins the presidential contest or Senate. If Senate leaders of both parties were sincere about benefiting our country, and with control of the Senate liable to go either way on Nov. 3, they’d huddle now like ladies and gentlemen to agree on Senate rules for executive appointees and federal judicial nominees moving forward. It’s high time our leaders on both sides start showing more responsibility than they have.
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