The nomination of Amy Coney Barrett to fill the Supreme Court seat left open by the death of Ruth Bader Ginsburg has sent America’s cultural and political wars into overdrive. The fear of a conservative-dominated Supreme Court and its impact on numerous issues ranging from health care to immigration to the election has been compounded by simmering anger over the fact that in 2016 Senate Republicans blocked President Barack Obama’s nominee, federal judge Merrick Garland, from even getting a hearing on the grounds that the nomination came too close to the election.
Democrats see a naked power grab by Republicans. Republicans see politics as usual.
"Bothsidesism" is supposed to be a cardinal sin in punditry now. Sometimes, it’s inappropriate. For instance, Donald Trump and Joe Biden were not equally to blame for the horror show of Tuesday’s "debate." But the judicial wars really are a debacle to which both parties have heavily contributed. (An excellent overview is offered by University of Illinois professor Nicholas Grossman in Arc Digital magazine, where, for full disclosure, I am an associate editor.)
The Garland block in 2016 was outrageous. So is the hypocrisy of pretending that the "no Supreme Court nominations in an election year" rule was meant to apply only when the White House and the Senate are controlled by different parties. (Senate Majority Leader Mitch McConnell said nothing of the sort in 2016 — and Sen. Lindsey Graham said back then that he would apply the same rule to a Republican president in 2020.) It’s especially galling given that Garland was nominated with 237 days left until the election, Barrett with 38.
But as Grossman demonstrates, Democrats and Republicans escalated the fights over nominees to lower federal courts under George W. Bush and then under Obama, letting the partisan rancor build up.
One can argue endlessly about whether Republicans have valid reasons to feel aggrieved by the handling of Brett Kavanaugh’s confirmation (for the record, I think they do). One can debate proposals for de-escalation, such as conservative pundit David French’s suggestion that Republicans and Democrats make a deal to agree on a mutually acceptable candidate after the election regardless of the outcome. In today’s climate of politics as war, any such proposal is a non-starter. So are appeals to Ruth Bader Ginsburg’s reported dying wish not to be replaced until after the election. Supreme Court justices are not monarchs, and deference even to a beloved justice has no constitutional relevance.
Barrett should face a tough examination. She should not be smeared as a member of a "Handmaid’s Tale"-style cult who presumably embarked on a judicial career just to send women back into patriarchal slavery. (The Catholic group to which she belongs is socially conservative, but the scaremongering seems based on dubious reports.)
It also would help not to catastrophize the outcome. Court appointees are not puppets; Trump’s first pick, Neil Gorsuch, has exasperated Trump supporters, and Kavanaugh may yet do likewise. Barrett has criticized Chief Justice John Roberts’ vote upholding the Affordable Care Act, but that doesn’t tell us how she would rule on the current, very different "Obamacare" challenge.
However they may smart over the "stolen" Garland seat, Democrats should unequivocally reject court-packing, which would send the judicial wars into a new and insane spiral. But they should do whatever they can to delay the confirmation until after the election. And if Trump loses on Nov. 3, Barrett should take a giant step toward defusing the culture wars and withdraw.
Cathy Young is a contributing editor to Reason magazine.