GOP Senate confirms Trump Supreme Court pick to succeed Ginsburg

The Senate confirmed Judge Amy Coney Barrett to the Supreme Court on Monday, providing President Trump with a last-minute political victory just days before Nov. 3. 

The 52-48 Senate vote on Barrett’s nomination capped off a rare presidential election year Supreme Court fight sparked by the death of Justice Ruth Bader Ginsburg on Sept. 18. GOP Sen. Susan Collins (R-Maine) was the only Republican to oppose Barrett, saying she doesn’t believe a nomination should come up before the election. 

Sen. Lisa Murkowski (R-Alaska), who previously voted against advancing Barrett because of the election, supported her nomination on Monday. Sen. Kamala Harris (D-Calif.) returned from the campaign trail to oppose Barrett’s nomination. 

Barrett’s nomination marks a new record for how close to the presidential election the Senate has confirmed a Supreme Court nominee. She’ll also be the first justice in modern history to be confirmed without bipartisan support, underscoring Democratic frustration with the GOP push to confirm her and misgivings about her judicial philosophy. 

Despite the high stakes of her nomination fight, there was little doubt that Republicans would fill the seat. Senate Majority Leader Mitch McConnell (R-Ky.) vowed within hours of Ginsburg’s death to give whomever Trump nominated a vote, and GOP senators quickly coalesced behind the strategy. 

McConnell, speaking to Republicans on the Senate floor, touted Barrett’s nomination as a long-lasting legacy of the past four years.

“We made an important contribution to the future of this country. A lot of what we’ve done over the last four years will be undone sooner or later. … They won’t be able to do much about this for a long time to come,” he said.

In many ways, Barrett’s confirmation caps off a generations-long goal for Republicans of a top-down overhaul of the federal judiciary. 

Barrett will lock in a 6-3 conservative majority on the Supreme Court, but beyond that, Trump has appointed a total of 220 judges, including 53 to the influential circuit courts and 162 district court judges. That puts him behind only former President Carter for the most judges confirmed at this point in his White House tenure. 

Republicans view the courts as an issue that fires up their voters and are hoping for a redux of 2018, when several Democrats who opposed then-nominee Brett Kavanaugh went on to lose their reelection bids. The court fight comes as Trump is trailing Democratic presidential nominee Joe Biden in a litany of polls and several GOP incumbents are fighting for their political lives. Political handicappers give Democrats good odds of winning back the Senate majority for the first time since 2014. 

“How do you say yes?” Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) said when asked if he thought the vote helped him in the final stretch of his reelection campaign.

McConnell, who is facing his own reelection bid, gave two thumbs up as he left the Senate chamber after the vote. 

Democrats dialed down the temperature for Barrett’s nomination fight, compared with Kavanaugh’s, and stayed away from Barrett’s Catholicism after a controversial hearing for her 7th Circuit nomination in 2017.

Instead, they’ve warned that Barrett, if she’s confirmed, would have negative consequences for health care and reproductive rights, including reining in Roe v. Wade and striking down the Affordable Care Act (ACA). 

Court watchers believe the Supreme Court could hear an abortion-related case this term if it decides to take up a review of Mississippi’s 15-week abortion ban, which was struck down by a federal court. The Supreme Court is also expected to hear a case the week after the election that could determine the fate of ObamaCare. 

“My Republican colleagues know they can count on her to provide the decisive fifth vote on the Supreme Court to strike down the ACA,” said Sen. Mazie Hirono (D-Hawaii).  

Barrett has been critical of the 2012 ruling that upheld the Affordable Care Act, but Republicans are quick to note that she hasn’t ruled on the health care law. She also hinted during her confirmation hearing that she thought the law could survive the individual mandate being struck down — a key issue in the case coming before the court next month. 

Barrett sidestepped several questions during her days-long hearing, refusing to weigh in on the looming election and whether she would recuse herself from election-related cases. Trump has said he wanted to fill the seat quickly so that his pick could be on the court to help resolve election-related matters. 

Democrats held an all-night talkathon to protest the GOP decision to fill Ginsburg’s seat before the November election. The current Supreme Court fight comes four years after McConnell refused to give Merrick Garland, former President Obama’s final nominee, a hearing or a vote. 

Republicans argue the political shift from 2016, when a Democrat was in the White House, to 2020, when the GOP holds both the Senate and the presidency, as a key distinction that’s in line with history. The last time a vacancy was filled in an election year was 1916. And the latest election year confirmation before Barrett was in July. 

“You lost this vote, but please don’t burn down this institution. Again, you lost this vote under the rules that Harry Reid created in 2013,” said Sen. Ben Sasse (R-Neb.), referring to the decision to nix the 60-vote filibuster for lower court and executive nominations. Republicans nixed the 60-vote filibuster for Supreme Court nominees.

Shortly after Monday’s vote, Barrett received her official constitutional oath, administered by Justice Clarence Thomas, during an event at the White House.

“It is the job of a senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give into them,” she said.

“The oath that I have solemnly taken tonight means at its core that I will do my job without any fear or favor, and that I will do so independently of both the political branches and of my own preferences,” she continued.

Her confirmation will pour fuel on calls from progressives for Democrats to nix the legislative filibuster and expand the Supreme Court if they find themselves back in the majority next year. Senate Minority Leader Charles Schumer (D-N.Y.) has been careful not to take anything off the table as he’s tried to keep his party united going into the Nov. 3. election.

Democrats, if they are in the majority, will also need to decide what they will do with a series of precedents they upheld in the Obama years, including the blue slip, a piece of paper that has been used to allow home-state senators to block a nominee. Republicans have done away with honoring the blue slip for circuit court judges, while keeping it intact for district court picks. 

Democrats, throughout the debate on Barrett’s nomination, warned that Republicans could come to regret their decision to fill the seat. 

“If that is the rule that Republicans are prepared to adopt here, that what matters around here … isn’t what is right but is just because we can, then please don’t feign surprise in the months and years ahead if we on the Democratic side follow that same rule,” said Sen. Sheldon Whitehouse (D-R.I.). 

Sen. Angus King (I-Maine), viewed as key vote to watch on both nixing the filibuster and expanding the Supreme Court, warned that there was “pearl clutching” over expanding the Supreme Court even though the number is not specified in the Constitution. 

“Oh no! Somebody is talking about breaking the rules and packing the court. Well, of course, Article 3 of the Constitution doesn’t establish how many members of the Supreme Court there should be,” King said. “I don’t want to pack the court. I don’t want to change the number. I don’t want to have to do that. But if all of this rule-breaking is taking place, what does the majority expect?”  

McConnell, during a lengthy speech ahead of Monday’s vote, laid the blame for the escalating judicial wars at the feet of Democrats and urged them not to “scorch the ground rules of our government,” in an apparent hat tip to the discussion about nixing the legislative filibuster and expanding the court. 

“I understand my Democratic friends seem to be terribly persuaded by their version of all of this. All I can tell you is: I was there, I know what happened. And my version is totally accurate,” he said. 

Schumer warned that the GOP majority was “lighting its credibility on fire.” 

“You may win this vote. But in the process you will speed the precipitous decline of faith in our institutions, our politics, the Senate and the Supreme Court. …You walk a perilous road,” Schumer said.

Asked about McConnell’s rhetoric after the vote, he told reporters: “I have two words for McConnell’s speech: Very defensive.”

—Updated at 9:57 p.m.