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  • Writer's pictureTiffany Lee

The Case for Justice Amy Coney Barrett

For the first time in United States history, the Senate has advanced a nominee toward confirmation only eight days before a presidential election. In light of Justice Ruth Bader Ginsburg’s death this past September, a seat on the Supreme Court has been left vacant during a presidential election year. To fill her seat, President Trump has nominated Judge Amy Coney Barrett, a decision that has divided both the people and the Senate. In response to the confirmation hearings to install Judge Barrett on the Supreme Court, former Vice President and presidential candidate Joe Biden has expressed his concerns asserting that "the only court packing going on right now, is going on with Republicans packing the court now, it is not constitutional what they are doing." Some Senators have also pushed for the vacancy to be filled after the presidential election, following the precedent set by Senate Majority Leader Mitch McConnell in 2016. However, is her nomination and possible confirmation truly unconstitutional?

Firstly, we must understand the significance of a nomination to the Supreme Court. The Supreme Court is referred to as the “court of last resort”, the highest court in the United States that interprets the Constitution and can consequently declare a legislature or executive act unconstitutional. This power of judicial review was established in the landmark court case Marbury v. Madison in 1803, emphasizing the supreme power of the judiciary over disputes regarding the Constitution between and within states. Another important factor to consider is the life tenure of the Supreme Court justices. The Constitution clearly states that justices “shall hold their offices during good behaviour.” Justices may only be removed due to “bad behavior”, a term that can be approached and interpreted in many ways. For instance, corruption, lack of integrity/ethics, bias, or lack of understanding of the law or the Constitution. Life tenure also ensures the independence of the judiciary from the influence of other branches. As emphasized by Alexander Hamiliton in The Federalist No. 78, judicial independence “is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.” If Judge Barrett were to be confirmed by the Senate, her influence would span over decades as well as create a conservative majority in the Supreme Court. Her decisions could potentially have implications on environmental, reproductive and healthcare legislation.

Article II Section 2 of the Constitution states that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ... Judges of the supreme Court." This would imply that when a vacancy occurs due to factors such as death, retirement or resignation of a Justice, the president has full authority to nominate a successor and this nomination is set to be confirmed by the Senate. Thus, President Trump has the constitutional right and responsibility to nominate Judge Barrett to the Supreme Court. The only obstacle that Judge Barrett faces is the Senate Judiciary Committee hearing where she will have to provide testimonies and respond to questions from the panel. The Constitution also specifies that “provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States...” Article II, Section II of the Constitution also “grants the Senate the right to withhold its consent, as it deems necessary.” The Senate has the power to accept or reject presidential appointees to the executive and judicial branches. The framers wanted to ensure that the power of appointment rested in the hands of the legislative branch, that otherwise in the hands of the president would “encourage monarchical tendencies”. Thus, in terms of the Constitution, the nomination of Judge Barrett is, in every sense, constitutional.

Historically, there have been controversial debates over Supreme Court vacancies. Following the passing of Justice Antonin Scalia in 2016, former President Barack Obama nominated Merrick Garland to take his place on the Supreme Court. However, the Republican Senate majority ensured that he never got a confirmation hearing. Senate Majority Leader Mitch McConnell (R-KY) reasoned that “given that we are in the midst of the presidential election process, we believe that the American people should seize the opportunity to weigh in on whom they trust to nominate the next person for a lifetime appointment to the Supreme Court.” Emphasizing that the voice of the American people should be considered through the results of the upcoming election, Senator McConnell declared any appointment made by the sitting president Barack Obama “null and void”. He asserted the next Supreme Court justice should be chosen by the next president after the election. As a result, this decision has set a “precedent” against holding confirmation hearings for Supreme Court nominees during a presidential election year. Now, four years later, Senator McConnell is being accused of hypocrisy for pushing Judge Barrett’s confirmation only 8 days before election day. Similar to his plea made in 2016, Democrats have urged that the American people should have a say in the next Supreme Court justice and keep the seat vacant until a new president is elected. Ruth Bader Ginsburg’s last wish paralleled the Democrats appeal, remarking that her “most fervent wish is that I will not be replaced until a new president is installed.” The Senate GOP has pushed through a Democratic filibuster, a tactic used to delay the Senate by having members talk endlessly, by a vote of 51 to 48 to advance the nomination of Judge Barrett. Filibusters are typically used by minority party members to force the withdrawal of the bill and in this case, used to delay the process of Judge Barrett’s confirmation. Democrats have also threatened to pack the court, increasing the number of Supreme Court judges, a practice that is widely unpopular. However, none of these efforts can stop the nomination.

While stare decisis or “let the decision stand” states that decisions and precedents created by the Supreme Court should be applied in future decisions, the precedent set by McConnell or even Lincoln (not putting forward a nominee during an election) regarding Supreme Court nominations doesn’t necessarily mean that it is law. The circumstances of this nomination are also different. During Barack Obama’s presidency, the Senate held a Republican majority while a Democrat held the White House. In contrast, Republicans currently control both the Senate and the White House. Historically, when their party controls the Senate, presidents can fill Supreme Court vacancies at any time whether it be during a presidential election year, a lame-duck session or after defeat. When the opposite party controls the Senate, they can block Supreme Court nominations made during an election year and hold the seat for the winner to fill.

Speaking strictly in the terms of the Constitution, the decision to nominate Judge Barrett doesn’t necessarily violate any specific article of the Constitution but as the tightest confirmation before an election, may stir controversy regarding a conservative majority in the Supreme Court and firm opposition from the public as well as the opposing party. In a couple of days Judge Barrett will either become the next Supreme Court justice or remain a federal judge, the rest is up to the Senate to decide.



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