The audacious case for Supreme Court Justice Amy Coney Barrett

Making the Notre Dame law professor a Supreme Court justice will be neither easy nor consistent. But Republicans should make it happen.

Amy Coney Barrett.
(Image credit: Illustrated | Newscom, iStock)

I have made no secret of my view that the greatest failing of Donald Trump's presidency has been his handling of Supreme Court vacancies. His first term in office, which has coincided with his party's control of the Senate, was the culmination of decades of work by social conservatives and legal activists to remake the federal judiciary. I have never seen this coalition more united than it was in 2018 behind the much-vaunted possibility of nominating Amy Coney Barrett, the distinguished Notre Dame law professor and U.S. Appeals Court judge.

Instead the president tapped Brett Kavanaugh, a decision which disappointed many of Trump's supporters. The sense that he all but betrayed the single most enthusiastic segment of his base explains, among other things, the president's decision to address more than 100,000 anti-abortion protesters in person at the annual March for Life back in January.

With the death of Ruth Bader Ginsburg at the age of 87, Trump has been given a chance to rectify this mistake, albeit under the most extraordinary circumstances imaginable, by nominating Barrett to the Supreme Court, as he is widely expected to do as early as Monday. She would not be the first justice appointed during an election year, nor would she be the first whose confirmation took less than 45 days. But replacing the high court's longest tenured liberal justice with Barrett, who at the age of 48 would likely end up serving for something like half a century, would be audacious by any measure.

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It would also be incredibly difficult — arguably the greatest high-wire act in the modern history of the upper chamber. At present there are two likely Republican defectors in the Senate, Susan Collins of Maine and Lisa Murkowski of Alaska. Two more would be enough to sink her nomination, and I would not put it past Willard Romney, whose loathing for the president is far more intense than his commitment to any of his ostensible principles, to endear himself further to Trump's critics by breaking rank here. Meanwhile, unlike during the confirmations of both Neil Gorsuch and Brett Kavanaugh, no one should expect Joe Manchin of West Virginia to cross party lines on Barrett's behalf. Any other Democratic defections are unthinkable.

Nor is the raw Senate math the only factor that would make Barrett's confirmation difficult. There are also a number of questions about the logistics of holding hearings that would require senators bogged down in re-election campaigns to be in Washington, D.C., to say nothing of the customary individual meetings with the presumptive nominee. Vice President Pence himself would likely have to be on hand in order to vote in the case of a tie, not exactly a remote contingency under the present circumstances.

The least important thing is worrying about "messaging" here. No one believed the Republicans' insistence in 2016 that they were only refusing to hold hearings on President Obama's nomination of Merrick Garland following the death of Antonin Scalia because it was an election year. This is why despite his recent suggestions to the contrary I fully expect Iowa's Chuck Grassley, the former chairman of the Senate Judiciary Committee, and the vast majority of his colleagues who opposed Garland to fall in line behind the president and the Senate majority leader. A foolish consistency is the hobgoblin of little minds, and even with Halloween fast approaching I do not expect the GOP to let any magical creatures interfere with its ability to press the greatest advantage it enjoys at present.

If Trump can get 50 votes, Barrett — or some hitherto undiscussed dark-horse nominee — will be confirmed before Nov. 3.

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