On Sunday afternoon, the US Senate voted 51-48 to invoke cloture on the Supreme Court nomination of Judge Amy Coney Barrett -- thus starting a 30-hour debate clock that will expire later this evening, at which point a final confirmation vote will take place. Two Republicans -- Susan Collins of Maine and Lisa Murkowski of Alaska -- crossed the aisle to join all Democrats (minus an absent Kamala Harris) in opposing cloture, as each has been on the record against filling the vacant SCOTUS seat prior to the election. But Murkowski has also stated that she'll be a "yes" on confirmation itself because she views Barrett as qualified for the position. So barring any major unforeseen shift, there is zero drama surrounding this evening's outcome. ACB will receive a majority of Senators' votes (the likeliest tally is 52-48) and will become the fifth female associate justice in the history of the United States.
This result is completely constitutional. It is in line with the overwhelming historical precedent and norms. And it has won the backing of the American people. In other words, in spite of Senate Democrats' agenda-driven efforts to delegitimize this process and result, it is entirely legitimate. I strongly recommend taking the time to watch not one, but two speeches by Senate Majority Leader Mitch McConnell leading up to this consequential event. Here he is on Saturday systematically filleting the dishonest misinformation being spread by Democrats and their allies, point by point (if you're pressed for time, watch from the 1:30 mark to 7:10 or so):
These methodical arguments are useful in debating the current battle. But of more lasting relevance and importance, in my view, was another speech McConnell delivered, echoing the message of Mike Lee's stemwinder in the judiciary committee last week. In 2017, I wrote this detailed analysis of why Republican senators had no choice but to adopt their Democratic counterparts' so-called "Reid Rule" precedent and confirm Judge Neil Gorsuch to the Supreme Court with a simple majority threshold. Democrats were engaged in a partisan filibuster against Gorsuch, the first time in history such an effort was undertaken to thwart a SCOTUS nomination. That maneuver merely represented the latest entry in a long line of unprecedented, unilateral, escalatory power grabs undertaken by Senate Democrats in the judicial confirmation wars. Over and over again, I wrote, Democrats had shown themselves to be ends-justify-the-means aggressors in these fights, often behaving outrageously in pursuit of power and ideological supremacy.
I argued that the time had arrived to finally start evening the score, forcing the opposition party to live by their own brass-knuckles rules. And that's exactly what has happened over the last four years. While screaming about legitimacy, Democrats are pretending that they're the victims in all of this and that Republicans are the ruthless, power-hungry actors in the ugly saga that they themselves have created through their own choices and tactics. McConnell sought to set the record straight, walking through the historical record with devastating precision (key segment is 4:10 through 20:45, a lengthy clip, but worth your time):
It's a matter of fact -- a matter of history -- that it was Senate Democrats who first began our contemporary difficulties with judicial nominations back in 1987, and who have initiated every meaningful escalation -- every single one of them -- from then up to the present day. In 1987, Ted Kennedy and his friends introduced the country to Robert Bork’s America, the first effort to smear a fully qualified judicial nominee based on insulting apocalyptic scare tactics...Well, imagine what happened then [after Obama was elected]. Suddenly Senate Democrats became very allergic to experiencing the effects of what they had started --the effects of their own playbook. They had no patience to taste their own medicine. Colleagues did not appreciate being held to the standards they just created a few years before. The shoe was on the other foot. Well, we all know what happened next. Another massive Senate-shaking escalation by Senate Democrats in 2013: the nuclear option. They broke the Senate rules to change the Senate rules so that a Democratic president would not have to play by the same rules they had invented shortly before.
I said at the time, quoting myself, they'd regret it a lot sooner than they would think. Well, that regret began in 2016...The President gets to nominate, but we get to decide whether to act on the nomination. Needless to say, after the unprecedented Senate-shaking steps that Senate Democrats had taken, the Republican Senate majority was not much inclined to depart from precedent and do President Obama that favor. Our decision in 2016 was fully in line with precedent, fully within the Constitution and completely within the Senate rules. Now, I understand why they didn't like it. I wouldn't have either. Of course they didn't like it. But elections have consequences and America had chosen a Republican Senate in 2014. But there's no parallel between actually breaking the rules, as Democrats did in 2013, and merely applying the rules in ways that Democrats do not like.
...I do not blame some of my Democratic colleagues who have not been present for all of this, and who wish the Senate would behave differently. But just know this: this is not spin. This is fact. Every new escalation, every new step, every new shattered precedent, every one of them, was initiated over there. No exceptions. And it all happened over the strenuous objection of Republicans who tried in each instance to stop Democrats from trading away long-term Senate norms for short-term political wins. 17 years ago, colleagues, Democrats were boasting to newspapers about this brand-new campaign to politicize judicial confirmations. They thought it was a great idea. They bragged about it. One of my colleagues called himself the king of the filibuster. He proudly wanted to own it. Well, sooner or later, the shoe is always on the other foot. So I hope our colleague from New York is happy with what he has built. I hope he is happy with where his ingenuity has gotten the Senate.
In short, your side -- and you personally -- built this, Chuck. Hope you're enjoying the view. Part of the subtext to all of it, of course, is a new, ruinously terrible escalation Schumer and friends have been threatening. They're warning that if they win back full control of government, they may consider attempting to pack the Supreme Court via the addition of new seats. This would be the death knell of an independent judiciary and would plunge American politics into a banana republic-style scenario of endless, purely partisan recriminations and retaliations. Democrats who support the radical scheme do so because there is no limit to their thirst for raw power, and because they believe they can convince the public (with the help of their media henchmen) that the GOP brought it upon themselves as a result of previous, illegitimate ruthlessness.
But the accurate history lesson from McConnell, which we've been highlighting for years, eviscerates Democrats' fictional, self-serving narratives and justifications. Court packing would be a thermo-nuclear event, from which the republic would never fully recover. On that score, respected Harvard Law professor Noah Feldman has weighed in. Feldman broke from many of his ideological brethren by endorsing Barrett's nomination in a thoughtful column several weeks ago. And now he's exhibiting intellectual clarity and honesty again:
Former Vice President Joe Biden plans to suggest a bipartisan commission to study the options. Unfortunately, the proposals all have serious flaws. Either their constitutionality is doubtful or they would undercut the tremendously valuable role that the court plays in protecting liberty and equality. The most dire of these proposals is court-packing. I’ve written before that any attempt to expand the court is likely to fail, and for good reason...Behind all of these questions lurks a deeper one: Does the Supreme Court really need reform? It’s worth remembering that the undoubtedly conservative Supreme Court that has existed over the last 30 years give us gay rights, gay marriage, and now statutory protection for the rights of trans people. The same court has chipped away at affirmative action, but has not (yet) eliminated it. Ditto for abortion rights. Yes, it eviscerated the Voting Rights Act, but in a way Congress could repair if it so chose. In fact, in the almost 90 years since Franklin Delano Roosevelt became president, the Supreme Court has been better for liberals than for conservatives.
I recognize that this is a progressive making a progressive argument designed to persuade fellow progressives. Several of his points are strong and well-taken. But I'd add that the answer to his question about whether the Court fundamentally "needs" reform should be answered without making any observations about jurisprudential outcomes. Unhappy rulings for one side are not a legitimate impetus for attempting extreme, extra-constitutional alterations to a major governing institution. And as we've noted previously, there isn't anything close to a credibility or legitimacy crisis facing the Supreme Court. The third branch is the one most trusted by voters -- far more so than the legislative branch, which has been mired in dreadful approval ratings for years. Amid the flying threats and saber-rattling, I'll leave you with the latest affirmation that the public has precious little appetite for Democrats' dangerous tantrum, driven by a wholly undeserved sense of retributive entitlement:
Marist poll: 2/3 of voters (including 63% of independents) oppose court-packing / adding seats to SCOTUS. In line with other polling on the subject. pic.twitter.com/IfHHVImMZm
— Guy Benson (@guypbenson) October 23, 2020
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