No to Amy Coney Barrett and No to Court Packing

Updated: Sep 18

Blake Fox

Israel Editor

On October 27th, 2020, Amy Coney Barrett was confirmed by the Senate to be an Associate Justice of the Supreme Court of the United States. Barrett, a university professor and a former federal Appellate Judge, is undoubtedly qualified to replace Ruth Bader Ginsburg on the Supreme Court. Barrett has long served as a law professor at Notre Dame University, clerked for the late Supreme Court Justice, Antonin Scalia and was rated as “well qualified” by the American Bar Association. Still, the process by which she was appointed is ludicrous, particularly when one looks back at how previous nominations have been challenged.

Following the death of Justice Antonin Scalia in February 2016, then-President Barack Obama sought to nominate Merrick Garland, the Chief Justice of the D.C. Circuit Court of Appeals, to the Supreme Court, with 237 days remaining until the election. Garland was a satisfactory candidate, however, the Republican-controlled Senate, led by Mitch McConnell, refused to hold hearings for Garland's nomination and instead insisted that the vacant seat should be chosen by the next President, who would be elected later in the year. Similarly, in 2016, Senator Lindsey Graham, who presided over Barrett's confirmation hearings, stated, "I want you to use my words against me. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said let's let the next president, whoever it might be, make that nomination." Even then-professor Barrett spoke against Garland's nomination, arguing that replacing "the staunchest conservative justice on the court" with an Obama-appointed Justice could "dramatically flip the balance of power..." Republicans left Scalia's seat unoccupied for more than 400 days before it was finally filled by Neil Gorsuch, Trump’s nominee, in April 2017.

Despite these events, when Ruth Bader Ginsburg passed away just five weeks before the 2020 election, McConnell and his Republican cohorts made no effort to stick to their precedent of allowing the president elected in November to pick the next justice. By the time the Senate confirmed Barrett, more than 65 million Americans had already voted. Now confirmed as a Justice, Barrett will be one of the most conservative Justices on the court and could serve as a crucial 5th vote on issues ranging from healthcare to abortion rights. Importantly, Barrett potentially could have given the conservatives a majority if Donald Trump tried to take legal action regarding mail-in ballots during the 2020 Presidential election.

Furthermore, Barrett's nomination came during the COVID-19 pandemic, which resulted in an unemployment rate of 7% and killed more than 220,000 Americans. McConnell and the Republican Senate refused to vote on the stimulus bill known as the HEROES Act, which passed the House of Representatives months ago. Instead of working through the parts of the HEROES Act they did not agree with, and getting help to the American people, the Senate spent time trying to rush through a Supreme Court nomination. With Barrett’s rushed nomination, the integrity of all Senators who voted in favor of the Justice’s confirmation is now called into question.

In response to Barrett's confirmation, many on the left have now called for the expansion of the Supreme Court. In 1937, President Franklin D. Roosevelt tried to add more Justices to the Court but was rebuffed in his attempt by the Democratic-controlled Senate. The Senate was correct to reject court-packing in 1937 and would be wise to do the same regarding any future attempts to pack the court. The biggest problem with court-packing is that the Supreme Court would become a tit-for-tat system, expanded everytime the President and the Senate belong to the same political party. For example, if the Democrats add two Justices to the court, the Republicans can respond by adding three Justices to the court next time they’re in control. This would create a never-ending cycle in which the Supreme Court is continuously expanded and made more and more partisan.

Gone would be the days where the Supreme Court was independent of the Executive Branch; instead, it would be submissive to Washington's political parties. As Democratic Senator Burton Wheeler stated during Roosevelt’s administration, court-packing would "create now a political court to echo the ideas of the Executive and... a weapon that can cut down those guaranties of liberty written into your great document by the blood of your forefathers and that can extinguish your right of liberty, of speech, of thought, of action, and of religion. A weapon whose use is only dictated by the conscience of the wielder." Court-packing would eliminate the entire judicial review process as established in the case of Marbury v. Madison in 1803. Before Coney Barrett's confirmation to the Supreme Court, the Court had a 5-4 conservative majority, but through judicial review, many actions of the Trump Administration were struck down, such as Trump's attacks on the United States Census and DACA. Packing the Supreme Court would potentially allow a President of the United States to dismantle fundamental American ideals such as separation of powers and civil liberties. The highest court cannot remain a credible body, much less the head of a separate government branch, if it is transformed into an easily manipulated toy of the Executive Branch.

In addition to the confirmation of Amy Coney Barrett, Mitch McConnell has politicized America's judiciary system. With the confirmation of many justices that this writer considers unqualified, including Justin Walker, Sarah Pitlyk, and Lawrence VanDyke, the courts have begun to shift into a tool weaponized by politicians, instead of individually important representatives of America’s democracy (although, it should be noted that other Judicial nominees, such as Josh Wolson and David Stras, were qualified). If Democrats want to combat the politicization of the courts, they should propose term-limits of 18 years upon Supreme Court Justices, or consider the creation of new federal circuits to handle the sizable federal caseload.




Photo Credit: NBC


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