The Incredible, Shrinking Case Against Barrett's Confirmation

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Posted: Oct 08, 2020 1:05 PM
The Incredible, Shrinking Case Against Barrett's Confirmation

Source: Demetrius Freeman/The Washington Post via AP, Pool

In case you missed it, a Morning Consult poll released yesterday reflected growing public support for confirming Judge Amy Coney Barrett to the Supreme Court, with a double-digit plurality now approving. In a previous survey released the day Barrett's nomination was announced, the split was a narrow (37/34) in favor of confirmation. But thanks to six-to-ten-point surges among Republicans, Independents and Democrats alike, support has risen to (46/31):

A Fox News survey published last night, which was generally filled with bad news for Republicans, showed a majority in favor of confirming Barrett, stronger numbers than the polling series had shown for the Gorsuch or Kavanaugh nominations. The confirmation hearings for Barrett -- an obviously qualified judge, law professor and former Supreme Court clerk -- begin on Monday. During her approval process to the Seventh Circuit Court of Appeals in 2017, Barrett's religious faith became a lightning rod for Democratic attacks, with Sen. Dianne Feinstein notoriously questioning her "dogma." The media has continued to explore this line of criticism, including a Washington Post piece that rehashed this old story, adding only a few ancillary details about Barrett's faith and associations. A number of Catholics and other Christians have weighed in:

For more on the "handmaid" ignorance, read this post from Ed Morrissey. Sen. Ben Sasse has seen enough. “Newsflash: Catholics hang out with other Catholics,” Sasse said in an interview. “There’s nothing nefarious about this.” Other Republicans are expressing similar disgust over this line of attack. The reality is that Barrett is unquestionably qualified, the Constitution and precedent both support confirmation, and Republicans -- presuming they can keep people healthy and achieve a quorum -- appear to have the votes to install the fifth-ever woman on the nation's high court. So the case against that outcome was always going to be political and frail. The critics are running in circles because they've dug up nothing on Barrett, and even their most "substantive" attacks require leaps of assumption and sleight of hand. Notice that neither member of the Democratic ticket has even attempted to knock Barrett's qualifications while discussing her nomination in front of tens of millions of Americans. Sen. Harris even evinced faux umbrage over the suggestion that anyone would target Barrett for her faith, even though multiple media outlets and Democratic senators have already done exactly that. (Indeed, Harris herself launched ugly religious-based attacks on another judicial nominee).

Meanwhile, as Democrats' bad-faith, straw-grasping demands for delays fall on deaf ears, the Biden campaign continues to conspicuously duck questions about potential court-packing under a hypothetical era of unified Democratic control. Biden gave a major speech in Gettysburg underscoring the importance of unity and bipartisanship as touchstones of his would-be presidency, leading a number of observers to note that these were not the sentiments of a man interested in ending the filibuster and blowing up institutions. Perhaps not, but if that's the case, he should say so. Voters deserve to know what he'd do with the power he's asking for. And Biden's personal instincts may not matter much if he knuckles under to harder-left elements after he wins, which is the whole thrust of the "trojan horse" theory: Make nice, moderate sounds, get elected, then allow hardcore ideologues to set the agenda. Biden could go a long way to dispel those fears by unequivocally rejecting court-packing (and other potential power-grabs), but he's bending over backward not to do so. His running mate doubled down with weak (and dishonest) evasions again last night.

Relatedly, a new public survey is the latest in an array of polls that show less than one-third of Americans supporting Democrats packing the court with liberals -- almost exactly mirroring the fraction of voters opposing Barrett's nomination in the Morning Consult data above:

The poll also found that even if Barrett is confirmed before Election Day, voters would oppose Democrats expanding the court...What gets tricky for Biden is that 60% of Democrats favor the idea of court expansion if Barrett is confirmed, compared to just 32% of independents. That means that very early on in his theoretical administration, Biden would be faced with a choice of whether to embark on a knock-down, drag-out court fight to appease the Left that will surely alienate independents or to disappoint liberals by dodging such a fight...Even worse for liberals is that if Democrats go ahead with expanding the court, there is even less support for packing it to gain a reliably liberal majority. In fact, just 30% of voters say they would want the expanded court to be ”slightly,” “mostly,” or “overwhelmingly” liberal, compared to the combined 64% who would want it to be “balanced” or slightly/mostly/or overwhelmingly conservative.

This analysis is also worth your time:

The two most serious weaknesses in this case have to do with the somewhat elusive concept of legitimacy. The first is the authors’ confidence that the Republicans are depleting the Supreme Court’s reservoirs. It has been a common theme of recent years. Not confirming Garland, the New York Times editorialized in 2016, could do “irreversible” damage to the court. Former Democratic Senator Russ Feingold said in 2017 that “the legitimacy of our highest court might never recover” if Republicans confirmed Gorsuch. And in 2018, Vox warned that Republicans’ confirmation of Brett Kavanaugh after an extremely bitter partisan battle meant that “the Supreme Court’s legitimacy crisis is here.” The public does not seem to have gotten the message. In 2015 — before the nominations of Garland, Gorsuch and Kavanaugh — the Supreme Court had a net approval rating of negative 5%, according to Gallup. In early September of this year, its net approval was a positive 10%. It is more popular than it was for nearly the entirety of Obama’s time in office. The Pew Research Center’s polling finds the same trend: The Supreme Court’s reputation has improved during the legitimacy panic of the last five years. Even Democrats view it more favorably now.

The "legitimacy crisis" exists in the minds of a relatively small band of rabid partisans. Making shocking changes to norms and institutions to "correct" a supposed problem that Americans don't see as such is part of the reason court-packing schemes are so unpopular. I'll leave you with this, via a Democratic member of the Judiciary Committee, as well as a new ad backing Barrett's confirmation: