Senate confirms Trump Supreme Court pick to succeed Ginsburg

  The Senate confirmed Judge Amy Coney Barrettto the Supreme Court on Monday, providing President Trump with a last-minute political victory just days before November 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 her nomination. 

Barrett’s nomination marks a new record for how close to the presidential election that 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 both 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. 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 last 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 then-President Jimmy 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 has been trailing Democratic nominee Joe Biden in a litany of polls and several GOP incumbents are fighting for their political lives, as political handicappers give Democrats good odds of winning back the Senate majority for the first time since 2014.  Democrats dialed down the temperature for Barrett’s nomination fight, compared to Kavanaugh’s, and stayed away from Barrett’s Catholicism, after a controversial hearing for her Seventh 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 or striking down the Affordable Care Act. 

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 the Affordable Care Act. 

"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, then-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 they hold 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 Rpeid 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.

Barrett’s 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 it 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 a 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 Three 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?”