Justice Ruth Bader Ginsburg died only two weeks ago, with a deathbed wish that she not be replaced until there is a new president in office. But President and 1968 Wharton graduate Donald Trump has nominated Judge Amy Coney Barrett for Ginsburg’s newly open Supreme Court seat, and the Republican Senate majority is moving quickly to confirm her before Election Day.
Some Penn professors and student political leaders expressed concern about Barrett's nomination. They were especially frustrated with the perceived hypocrisy of the Republican senators who blocked former President Barack Obama's Supreme Court nominee in March 2016, stating that the winner of the upcoming election should decide who chooses the nominee.
Ginsburg’s court vacancy is the second closest to a United States presidential election ever — with the closest vacancy resulting after Justice Roger Taney passed away in 1864, during Abraham Lincoln’s presidency. Despite Taney passing away 27 days before the election, Lincoln nominated Justice Salmon Chase prior to the election of 1864, and he was confirmed after the election.
If Barrett is confirmed by the Senate, she will be the fifth woman to sit on the Supreme Court and Trump’s third nominee to the court, following Neil Gorsuch in 2017 and Brett Kavanaugh in 2018. If she is confirmed, the court would have a 6-3 conservative majority — which would make the court the most conservative it has been in 70 years and potentially overturn monumental decisions about abortion and gay marriage.
Leon Meltzer Professor of Law and Professor of Philosophy Mitchell Berman described Barrett’s commitment to originalism – interpreting the constitution from the strict historical perspective of the founders – as “entirely wrong-headed.” But he does not have any large objections to her nomination, except for the fact that Republicans are attempting to confirm someone to the Supreme Court during an election year — a move they strictly opposed in 2016.
President Obama nominated Merrick Garland to fill Justice Antonin Scalia’s seat in March 2016 after Scalia passed away the month before. This nomination, despite being nine months from the November presidential election, was quickly shot down by Senate Majority Leader Mitch McConnell.
"The American people should have a voice in the selection of their next Supreme Court Justice,” he said in 2016. “Therefore, this vacancy should not be filled until we have a new president." McConnell and other Republican senators held this sentiment and refused to act on the nominee.
Yet, when Trump nominated Barrett, McConnell said that she will receive a vote on the Senate floor.
Berman described this act as “sheer hypocrisy” and a sign that the Republican party has “completely lost its moral compass.”
“It's an entirely corrupt political party,” he continued. “This is a party that has no sense of fair play, and no sense of preservation of important democratic norms. It is a party that cares about nothing other than keeping itself in power. Ordinary Republicans who are members of the Penn community should be ashamed of their party.”
As an undergraduate, Barrett attended Rhodes College, where more than 1,500 alumni have signed a letter of concern over her nomination to the Supreme Court, writing that they "believe both her record and the process that has produced her nomination are diametrically opposed to the values of truth, loyalty, and service that we learned at Rhodes."
Barrett is a law professor at Notre Dame and currently sits as a federal appeals court judge on the Seventh Circuit in Chicago, after being nominated by Trump for the position in 2017. She clerked for Scalia, who is a conservative icon and an originalist. Gorsuch, Trump’s first nominee to the Supreme Court, is also an originalist.
In a 2016 law review article that Barrett co-authored, she explained that originalists are committed to two things — reading the Constitution as “fixed at the time of its ratification” and stressing that the historical meaning of the text "has legal significance and is authoritative in most circumstances."
Penn Democrats legislative director and College junior Francois Barrilleaux agrees with Berman. He thinks the fact that Trump nominated someone so close to an election is hypocritical given precedent from 2016.
“We shouldn't have a rushed sort of nomination process just to get this done before the election,” he said. “People should be thoroughly vetted and questioned and there should be time for that process to occur, and I don't think we can have a meaningful process like that before the election, especially now that several of the Republican senators, especially members of the Judiciary Committee, have now tested positive for the coronavirus.”
On Friday, Trump announced that he and the first lady have tested positive for the coronavirus. Following this announcement, the pandemic has ripped through the White House and the Republican Party – especially after a Rose Garden event announcing Barrett's nomination where social distancing was not followed. Among those infected are Senators Mike Lee (R-Utah) and Thom Tillis (R-N.C.), both of whom sit on the Judiciary Committee.
While Barrilleaux thinks that any Supreme Court nomination during an election year would be hypocritical, he recognizes that there is nothing in the Constitution that prohibits it.
Despite his opposition, Berman, too, recognizes that Trump has the constitutional right to nominate someone to the Supreme Court at any time during his presidency.
“The question isn’t exactly does the President have the constitutional right or constitutional power to nominate Barrett, nor is the question whether the Senate has a constitutional right or power to confirm her,” he said. “The question is, given their position four years ago, is it remotely decent or ethical for them to confirm her? And the answer to that question is no, without any shadow of a doubt."
Political science professor Marc Meredith also agreed that there is nothing in the Constitution that prohibits Trump from nominating someone to the Supreme Court in an election year, but thinks that opinions on whether or not it should be done are split on partisan lines.
“There are going to be positive Democrats who think this is something unethical thing to be doing, [and] you're going to have Republicans saying the exact opposite — that, in fact, the moral thing to do is to do this,” he said. “This is a case where someone's views of what is ethical and what is moral is going to be highly related to their partisanship and to their ideology.”
Director of Data Sciences at Penn Program on Opinion Research and Election Studies Dr. Marc Trussler agreed, explaining that most decisions individuals make are largely based on national politics which focuses less on individual politicians and more so on their affiliation with the national Republican or Democratic Party.
Trussler continued to say that Trump's nomination of Amy Coney Barrett and McConnell's push to start confirmation hearings before the election is aligned with the Republican Party's goals.
"It has entirely to do with their policy goals, and they understand that if they get a more conservative member onto the court, then they're more likely to gain the policy goals that they have," he said. "They are clearly moving forward with this at such a speed that they feel that the electoral benefits of doing this outweigh what the electoral cost may or may not be."
Despite the new coronavirus infections within the White House and the Republican Party, Trussler thinks that McConnell and other Senate Republicans will still try to push the confirmation hearings through.
"It's impossible to say, but I would say there's a 70% chance they do it before the election," he said.
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