The Notre Dame Law School graduate and professor is only the fifth woman to ever serve on the nation’s highest legal body
Judge Amy Coney Barrett of the United States Court of Appeals for the Seventh Circuit was confirmed as an Associate Justice of the Supreme Court on Monday evening after a fast-tracked and bitterly partisan confirmation process.
Barrett’s journey to the Court began one month ago when President Donald Trump announced her as his pick to succeed the late Justice Ruth Bader Ginsburg on September 26, in a Rose Garden ceremony attended by several dignitaries from Notre Dame, including University President Father John I. Jenkins, C.S.C., and G. Marcus Cole, Dean of Notre Dame Law School.
The Senate voted 52-48 to confirm Barrett, largely among party lines. Only one Republican Senator, Susan Collins of Maine, joined all Senate Democrats in opposing the nomination, while all other GOP senators voted in favor.
Barrett’s confirmation hearings before the Senate Judiciary Committee were held over four days beginning Monday, October 12. They could not have been more different in tone than the hearings held for President Trump’s previous Supreme Court pick, the now-Justice Brett Kavanaugh, whose confirmation was nearly derailed when he was accused of sexually assaulting a woman when he was in high school.
From the moment news of Barrett’s nomination broke, Democrats, in their attempt to defeat her, have been almost exclusively fixated on Barrett’s position on the Affordable Care Act, or ACA. Barrett penned a law review article before her appointment to the Seventh Circuit criticizing Chief Justice Roberts’ majority opinion in the 2012 case National Federation of Independent Businesses v. Sebelius, which upheld the ACA’s individual mandate as a lawful use of Congress’ taxing power. However, according to Barrett, the text of the law stipulated not a tax but rather a financial penalty. She went on to argue that “had [Chief Justice Roberts] treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce power.”
During their questioning of Barrett in her hearing, Democratic members of the Judiciary Committee focused on this article, in an attempt to glean a preview of how she might rule in California v. Texas, a case the Court will hear the week after the election that could strike down the entirety of the ACA (The Rover has covered California v. Texas, among other cases in the upcoming term, in a previous issue).
However, beyond the ubiquitous healthcare-related questions and the occasional point about her views on Roe v. Wade, Democrats remained relatively hands-off, possibly out of fear of creating another viral moment like the one that occurred during Barrett’s confirmation hearings for her Seventh Circuit post, which the Rover covered in 2017. California Senator Dianne Feinstein, a Democrat, questioned Barrett on her Catholic religious beliefs, saying that “I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern.”
The reaction was swift from conservatives, who accused the Senator of imposing a religious test on a nominee, something prohibited under Article VI of the Constitution. “The dogma lives loudly” became something of a rallying cry for religious conservatives, who began selling such items as T-shirts and coffee mugs with Feinstein’s words imprinted on them.
Despite their opposition to Barrett, Democrats ended up ultimately powerless to stop her confirmation as a result of the Republicans’ 53-47 majority in the Senate. However, this did not stop them from calling attention to what they saw as Republican hypocrisy regarding confirming a justice during a presidential election year, which the GOP, under the direction of Senate Majority Leader Mitch McConnell of Kentucky, infamously refused to do for President Obama’s nominee, Merrick Garland, after the February 2016 death of the conservative Justice Antonin Scalia.
Garland never received a hearing or vote in the Senate, enraging Democrats to the point that they would attempt to use the filibuster to block President Trump’s eventual nominee for Scalia’s seat, Neil Gorusch. However, Senate Republicans then invoked the so-called “nuclear option,” changing an interpretation of Senate rules to only require an absolute majority to end a filibuster for Supreme Court nominee rather than the usual three-fifths majority. Former Senate Democratic leader Harry Reid of Nevada also made use of the nuclear option in 2013, when the Democratic-majority Senate eliminated the three-fifths threshold for all nominees except those for the Supreme Court.
During the last thirty hours of debate following the “cloture” motion on Sunday afternoon, Senators from both parties tried to make their final case to the American public before Barrett’s seemingly inevitable confirmation. Indeed, many Democrats would cite the “McConnell Rule” of not confirming a justice in a presidential election year to justify their opposition to the process.
Senate Minority Leader Chuck Schumer of New York labeled Republican actions as “an inerasable shame,” but has thus far declined to explicitly endorse the proposals of some to “pack the court,” that is, increase the number of justices on the Supreme Court to alter its ideological balance. The idea is not mainstream in the Democratic caucus, but is promoted rather by Schumer’s more progressive colleagues, such as Massachusetts Senator Ed Markey, who tweeted shortly after Barrett was announced as Trump’s nominee that “If Republicans confirm Judge Barrett, end the filibuster and expand the Supreme Court.”
For their part, the GOP has insisted that the circumstances are different in this case, as both the presidency and the Senate are under the control of the same party, while in Garland’s case there was a divided government. The GOP has vowed to oppose any Democratic attempts to expand the Supreme Court; Texas Senator Ted Cruz, joined by five others of his party, introduced a constitutional amendment to fix the number of Justices on the Court to nine, as under the current system Congress may expand or shrink the Court according to its will.
With enough Republican Senators having previously announced that they were to support Barrett to all but ensure her confirmation, the final vote, occurring around 7:50 p.m., was rather anticlimactic. Despite this, Barrett gained a somewhat surprising supporter on Saturday, when moderate Republican Senator Lisa Murkowski of Alaska, who had opposed taking up a nominee before the election, announced that she would vote ‘no’ on the procedural steps but ultimately vote in favor of Barrett’s final confirmation, saying that “while I oppose the process that has led us to this point, I do not hold it against her as an individual who has navigated the gauntlet with grace, skill and humility.” Murkowski’s ‘yes’ vote thus left Collins as the sole GOP senator to vote against Barrett.
The newly-confirmed Justice Barrett was administered the Constitutional Oath by the most senior Associate Justice, Clarence Thomas, in a White House ceremony on Monday evening. In her remarks, Barrett thanked the President, McConnell, Judiciary Committee Chairman Lindsey Graham, as well as those “who have supported our family over these last several weeks. Through ways both tangible and intangible, you have made this day possible.” Echoing a constant theme from her confirmation hearings, Barrett emphasized that “it is the job of a judge to resist her policy preferences,” in favor of fidelity to the “Constitution that establishes the rule of law and the judicial independence that is so central to it.”
Chief Justice Roberts administered the Judicial Oath in a private ceremony on Tuesday, according to a Supreme Court press release. With that Oath, Justice Amy Coney Barrett “will be able to begin to participate in the work of the Court.” Thus, the contentious process officially came to end and placed a new Justice, and Notre Dame’s first alumna, on the Court, who will undoubtedly have an extensive impact on American jurisprudence for decades to come.
Luke Koenigsknecht is a sophomore from Grand Rapids, Michigan studying electrical engineering. In his spare time, he enjoys reading as well as playing games or solving puzzles. He also fancies himself an amateur baker. He can be reached at firstname.lastname@example.org.