Justice Amy Coney Barrett, as she will now be known, was confirmed by the Senate 52-48 on Monday evening, with a swearing-in shortly thereafter. A few congratulations are in order, as well as some thoughts about the future of the Supreme Court.
Senate Republicans held firm against the Democratic demagoguery that portrayed Judge Barrett as a sworn enemy of everyone with pre-existing health conditions. Judge Barrett helped by acing her hearings.
She spoke with conversational depth on the law, likening legal severability to a game of Jenga—pull out one unconstitutional piece and the entire law doesn’t have to fall. She was sympathetic toward litigants and said she wept with her adopted daughter after seeing the George Floyd video. She kept a poker face for 29 minutes as Senator Sheldon Whitehouse drew conspiratorial squiggles on a poster board.
Her poise and fluency explain why 51% of Americans, in a Gallup poll last week, said they want to see her ascend to the Supreme Court. By voting yes, Republicans stood by their principles and fulfilled their constitutional role, no matter the electoral implications. Chairman Lindsey Graham left the campaign trail to lead the Judiciary Committee hearings. Senators Cory Gardner and Martha McSally, who might lose on Nov. 3, didn’t flinch.
Majority Leader Mitch McConnell deserves special credit for helping to reshape the federal courts after decades of liberal dominance. In addition to three associate Justices, the Senate in the last three-and-a-half years has confirmed 53 circuit judges, or about 30% of the appellate total, plus 162 district judges, per Mr. McConnell’s office. This legacy will last for a generation or more.
President Trump has honored his 2016 campaign promise by appointing distinguished jurists who adhere to a broad church of originalist views. As even a critic at the left-wing Vox web site has admitted: “Based solely on objective legal credentials, the average Trump appointee has a far more impressive resumé than any past president’s nominees.”
As for the Supreme Court’s new 6-3 conservative majority, it doesn’t guarantee any particular rulings or policy results. That’s a major difference between progressive and originalist judges. The new originalist Justices have already demonstrated varying ways of reading the Constitution and handling precedent.
An example: In 2017 Lambda Legal warned that then-Judge Neil Gorsuch had “an Unacceptable, Hostile Record Towards LGBT People.” The same Neil Gorsuch ruled in June that the text of the 1964 Civil Rights Act bars discrimination nationwide against gay and transgender workers. Remember this when you hear predictions about what the Court will do next.
Chief Justice John Roberts is less an originalist than a pragmatist and judicial politician, but the new lineup will reduce his influence as the swing vote. If the Chief joins the liberals in dissent, the task of assigning the majority opinion will go to Justice Clarence Thomas as the senior associate Justice. That could have a crucial impact on how far the majority opinions are willing to go in setting new legal precedents or overturning old ones.
Our hope is that the new Court will seek to restore the proper understanding of the separation of powers, while continuing to guard individual liberty as understood in the Constitution. This means reining in the administrative state, while nudging Congress to take back its powers by writing laws with specificity, instead of passing legislative Mad Libs for the executive to finish. Also important will be protecting individual Americans from the coming progressive assaults on free speech, religious liberty and gun rights, among other things.
Democrats are fuming, but they should consider their own role in killing the Senate filibuster for judicial nominees in 2013 to put three liberals on the D.C. Circuit Court of Appeals. The progressive press cheered on former Senate Majority Leader Harry Reid, while we warned this would likely boomerang. So it has.
Democrats have called Justice Barrett’s confirmation a “sham vote” and an “illegitimate process.” They want to delegitimize the Court in case they choose to add two or four Justices if they regain the Senate. This would turn the Court into a House of Lords, a de facto second legislature to achieve progressive goals. Are Democrats willing to pay what could be a steep political price for ruining the judiciary?
—The Wall Street Journal