Jurisprudence

The Deranged, Dangerous Push to Still Seat Amy Coney Barrett

For the GOP, entrenching minority rule is more important than human life.

Trump stands at a lectern near Amy Coney Barrett and speaks to a seated crowd.
President Donald Trump announces Judge Amy Coney Barrett as his nominee to the Supreme Court in the Rose Garden of the White House on Sept. 26. Chip Somodevilla/Getty Images

Within an hour of Justice Ruth Bader Ginsburg’s death on Sept. 18, Senate Majority Leader Mitch McConnell announced that he would fill her seat on the Supreme Court before the Nov. 3 election. We now know, by way of the New Yorker’s Jane Mayer, that McConnell had even reassured donors last spring that he would fill a Supreme Court seat for Trump regardless of how close to the election Ginsburg’s death might be. While she was still hearing cases, McConnell referred to the prospect of replacing her in the event of her death as “our October Surprise.” Confronted with accusations that this was hypocrisy in light of his contrary position in 2016 on filling Justice Antonin Scalia’s seat in a presidential election year, McConnell mouthed some word salad about why this time is different, but he was actually being perfectly consistent. In both 2016 and 2020, the reason he was doing what he did to pack the courts with judges, in violation of norms, rules, and decency, always came down to “because I can.”

Two days after Ginsburg died, McConnell announced that he had secured the votes to confirm anyone the president named to fill the vacancy. Anyone. Why would Republican senators pledge to vote for a nominee who had yet to be named and then rush that nomination through in a truncated process? Three words, because I can. The next day, Judge Amy Coney Barrett was offered the job and a week after that, Donald Trump nominated her in a Rose Garden event in which guests gathered without masks, indoors and outdoors, hugging and shaking hands, laughing, and celebrating. This event now appears to have infected multiple elected officials, presidential advisers, journalists, staffers who were just doing their jobs, and countless yet-to-be-tested others. There is also the question of the nameless people who came in contact with people in attendance at the event and who may also have been infected with a lethal virus. I am well aware that for the people who are already ill, their lives and long-term health are now in danger. Nobody wished this catastrophe upon them. But it is possible to wish them a full recovery while also being incandescently angry. Because under what deranged logic would they have mingled and hugged and chatted in the midst of a pandemic at yet another maskless event at the White House? Oh, right. Because they believed that being tested, having their temperature taken, and being given the assurances of the president that masks are stupid meant they were immune. In short, “because I can.”

As Charlie Warzel noted on Saturday morning, for those people who haven’t seen their parents or grandchildren, haven’t heard live music, haven’t hugged a living soul for eight months, the indignity of “because I can” truly smarts. It suggests that all those months of precautions and deprivations were not necessary for any lofty epidemiological or public health ends but were just signs that we’re all suckers. It’s one thing to be suffering job loss and family illness and economic panic, but quite another to be winkingly advised that all that suffering came about because you’re a chump. And as my colleague Lili Loofbourow pointed out after McConnell announced he would be filling Ginsburg’s seat simply because he could, the pain many of us are experiencing has nothing to do with “hypocrisy,” per se, but the debasement one experiences when political leadership embraces maximalist power and ethical nihilism at your own expense:

Make no mistake: It is degrading when people lie to you openly and obviously. Leaving the polity aside for a moment, it’s the kind of emotion we humans aren’t great at coping with. Sometimes we react by snorting at anyone who expects any better (that is again the “you’re surprised?” cynicism). But if you can’t cover it with cynicism, it simply hurts.

For many of us, the pain of the current moment is that it’s difficult to know what to feel when political leadership that believed itself impervious to fact, science, consequences, history, moral judgment, and public will is suddenly faced with the lethal reality of all those things. Already, more than 209,000 Americans have died of a virus many Republicans believed would never touch them. They believed it would never touch them, and now it has, and trying to work out how to feel about that is still complicated. But the GOP is proceeding as though nothing has changed, even in the midst of realizing that the party at which it celebrated its SCOTUS victory, because it could, turned out to be a possible superspreader event. Republicans were always willing to risk anything, including the Senate majority, to seize the court, and we know why. Still, it’s beyond ghoulish at this point. It’s borderline psychotic.

After McConnell announced the most truncated confirmation schedule in recent history, Democrats begged for more time. Time to do a proper vetting after they learned Barrett had failed to disclose a material document in her submission to the Senate Judiciary Committee. More time when it became clear that, due to the speed of the proceedings, the FBI background check will be rushed. But Republicans have said that, because they can, they’ll still plan for the hearings to start Oct. 12, with a final vote coming by the end of the month. This has remained the plan even after Donald Trump tested positive for COVID and so did Republican Sen. Mike Lee, who met Barrett without masks on Wednesday, and Republican Sen. Ron Johnson. The scheduled hearings will still proceed apace. Sen. Lindsey Graham has suggested there is no need to push off the hearings for purposes of quarantine. The president is still very focused on having Barrett confirmed.

Axios reported that even if Lee or other senators cannot attend the hearings, they may proceed virtually. On Saturday, when questions arose about Senate quorum rules, we learned that one plan would have all infected senators be “perched in the gallery” for an in-person vote, because no matter how sick they are, or whom they infect, or whether other colleagues are exposed, this hearing is going to happen, and it’s going to happen on schedule. It must happen on schedule, it is worth fighting and possibly dying for. The Senate will be closed down for all other floor proceedings, no other business of governance, including financial and COVID relief, will be undertaken, but this confirmation will happen, no matter whom it sickens and why.

But even with this continued recklessness, the truth is that GOP senators are less likely to sicken or die for it. They are not like the 209,000 Americans who have died of this disease, who are disproportionately Black and brown and poor and struggling to pay rent and unable to afford medical care. Unlike these people, the senators have lots of choices to make about their priorities. They had choices to make about wearing masks and about going to events—even about waiting for testing results—without precautions. They had choices to make about slagging doctors and public health experts. They had choices to make about passing relief bills and assistance legislation. They—unlike Senate elevator operators and cafeteria workers—still have choices to make about going to work. And if the rest of us experience that as a profound insult, as disrespect and debasement, it’s because we don’t have all those luxuries and it makes us feel like suckers. A tiny group of people who believed themselves invincible held a coronation for a judge and got themselves sick. And even now, sick and not having put forth an effort to trace who else has been sickened, they will risk their own lives and the lives of their staff, families, and anyone nearby to see the coronation through, because they can.

It shouldn’t shock anyone that the single vital legacy for the GOP—the singular thing Mitch McConnell and Lindsey Graham will crawl across broken glass and a broken Senate and even the sick bodies of their colleagues and friends to achieve—is the seating of someone who will not now be vetted, questioned, or publicly known to the American people. The time allocated will not allow those things. This is, in the end, a keystone of a minority rule project that grows evermore important as the president and the GOP sink in the polls. The brass ring—filling this vacant seat even after voting has begun so this ninth justice can decide the election for the president—is the Holy Grail for this misshapen death cult that is seemingly all that remains of an otherwise useless Senate majority. Not one right-thinking person should exult in the suffering and illness that has struck the president, his advisers, and the GOP. But if you feel debased and ashamed because they will use whatever embers of political power and will that are left not to protect others who are ill but to push through a judge who may kill the remains of the Affordable Care Act that they could not kill legislatively, well, there is nothing wrong with you. What we are witnessing is debasing, to them and to you. But they will do it. Because they can.