The Senate voted 52-48 on Monday night to confirm Judge Amy Coney Barrett to the Supreme Court. All Democrats, along with Maine Sen. Susan Collins, voted against her nomination. The vote secures conservatives a 6-3 majority on the high court and, barring meaningful Democratic reforms to the courts the next time they’re in power, the nearly 250-year ballgame of American politics.
Justice Clarence Thomas is scheduled to swear in Barrett during a Monday evening ceremony at the White House, where one month ago Barrett’s nomination was announced in what became a COVID-19 super-spreader event.
Justice Ruth Bader Ginsburg died on Sept. 18. Senate Majority Leader Mitch McConnell had the votes to confirm her replacement on Sept. 21, and her replacement was announced as Amy Coney Barrett five days later, on Sept. 26. The only change in the expected vote count over that time was from Alaska Sen. Lisa Murkowski, who announced this weekend that she would vote to confirm Barrett after voting against ending debate on the nomination.
So where did the last month go? Democrats chose to engage with the nomination to draw out what damaging views they could. The message they settled on was that President Trump had selected her to strike down the Affordable Care Act, which (again) comes before the court a week after the election. They could not stop her, and they wanted to avoid a Kavanaugh-like fiasco that might make her sympathetic, so they chose to hone their strategy on health care, their top issue in the election.
Maybe it helped keep Affordable Care Act protections in the news for a few days, but it didn’t make a dent in Barrett’s support. The confirmation hearings helped her. On September 26, when Barrett was announced, 37 percent of voters supported confirming her versus 34 percent who were opposed, according to a Morning Consult poll. In mid-October, after the Judiciary Committee hearings—after which Democratic Vice Chair Dianne Feinstein hugged vulnerable Republican Chairman Lindsey Graham for doing such a great job—the same pollster found 51 percent supported Barrett’s confirmation versus 28 who opposed it. A Gallup poll was closer, but 51 percent still supported her confirmation.
Barrett’s ascension is the culmination of a decades-long effort, and a McConnell legacy project, of orienting the Supreme Court to the right for the long haul. Barrett is the 220th federal judge nominated by Trump that McConnell has processed through the Senate, a deliberative body he converted into a pop-up factory for conservative judges. The project began with McConnell blocking consideration of President Obama’s nominee, Merrick Garland, on the grounds that it was only eight months until a presidential election, and ended with McConnell completing the confirmation of Trump’s third nominee eight days before the next presidential election.
“A lot of what we’ve done over the last four years will be undone, sooner or later, by the next election,” McConnell said on Sunday following a procedural vote advancing Barrett’s nomination. “But they won’t be able to do much about this for a long time to come.”
What McConnell meant is that he believes his Democratic colleagues are chumps. He knows that Democrats, next time they control Congress and the White House, would have the constitutional and statutory ability to add seats to the federal judiciary if they so wished. He bets they’ll chicken out because adding seats to the Supreme Court currently polls poorly. It’s a good bet.
In his final speech against the nomination on Monday, Senate Minority Leader Chuck Schumer—who’s thrown some procedural roadblocks into the mix the last few days, just to show he’s making an effort—issued veiled, but unspecific, threats about how Democrats would retaliate.
“And I want to be very clear with my Republican colleagues,” Schumer said. “You may win this vote. And Amy Coney Barrett may become the next Associate Justice of the Supreme Court. But you will never get your credibility back. And the next time the American people give Democrats a majority in this chamber, you will have forfeited the right to tell us how to run that majority.” He quoted McConnell’s warning from 2013 when the Democratic majority eliminated the 60-vote filibuster on executive branch and certain judicial nominees: “You’ll regret this, and you may regret it a lot sooner than you think.”
“I would change just one word,” Schumer said. “My colleagues may regret this for a lot longer than they think.”
If Democrats are successful next Tuesday in taking the White House and the Senate, it will be up to Schumer and his majority to see that they do.