Court's legitimacy in the balance

Absent a political meteor in the next few weeks, the U.S. Senate will confirm Amy Coney Barrett to a lifetime appointment on the Supreme Court, as if the nation needed any more reminders that elections have consequences.

To replace the late Justice Ruth Bader Ginsburg, an equal rights crusader whose tenure on the court turned her into a feminist icon, President Donald Trump chose a woman jurist who has yet to make her mark but who is equally heralded for her intelligence, kindness and ability. Ginsburg’s eulogist mentioned the partnership she had with her husband that helped her navigate career and family, and Barrett, in a Rose Garden speech after her nomination, also spoke of a marriage team. And as much as Ginsburg didn’t want Barrett to be her successor, she would have had to give a nod of camaraderie when, near the end of her Senate interrogation, Republican John Kennedy of Louisiana asked Barrett, "Who does the laundry in your house?"

But those admirers and supporters of Ginsburg and Barrett reside in separate spheres of American life, divided by political ideology or judicial philosophy. Trump had promised that he was "saving" Barrett for Ginsburg’s seat, and Ginsburg’s dying wish was that he wouldn’t succeed. It’s been four decades since Ronald Reagan campaigned for the presidency with the promise that he would select justices who would overturn Roe v. Wade, and since then control of the nation’s top court has been the ultimate prize in our culture wars. The court has seen its legitimacy as neutral arbitrator undermined with each nomination battle. As a result, the role of the high court, an essential element of our constitutional system of checks and balances, now has a dangerously outsized role in that process. If Barrett shifts the court dramatically to the right and seeks to reduce the power of regulatory agencies to combat climate change or reduce access to abortion, confidence in the court’s independence will be further eroded.

Replacing Ginsburg

Trump, who has fomented controversy about a chaotic and fraudulent election, said that replacing Ginsburg before the nation chooses a new president and Congress was crucial — for him, and his reelection. The hypocrisy of GOP senators who refused to even consider President Barack Obama’s March 2016 nomination of Merrick Garland, a moderate jurist by any measure, will be a historic marker of how our federal government failed the nation.

"I think having a 4-4 situation is not a good situation," said Trump, referencing the contested 2000 election between Al Gore and George Bush that was resolved in Bush’s favor by a 5-4 vote on the court. "I think it should be eight nothing or nine nothing, but just in case it would be more political than it should be, I think it’s very important to have a ninth justice," he said.

It’s likely that Trump’s third nomination to the Supreme Court will be confirmed by a strict party-line vote. Antonin Scalia, a mentor to Barrett and whose seat Garland would have filled, was one of the court’s most conservative justices. He was confirmed in 1986 with a 98-0 vote.

Barrett’s testimony

During her testimony before the Senate Judiciary Committee last week, Barrett, as have nominees before her, said little about how she would decide any issue. Ridiculously little. She wouldn’t even acknowledge that voter intimidation is a federal crime, even after a senator read her the statute. She did acknowledge that Brown v. Board of Education, which ended legal racial segregation in public schools, was an untouchable precedent. But she also made clear that she is open to reconsidering prior cases considered long settled, including the 1965 Griswold v. Connecticut decision which struck down that state’s ban on the sale of contraceptives to married couples. The case was to become the building block for establishing a constitutional right to privacy and autonomy in our private lives. It’s the foundation of Roe v. Wade in 1973 and extends to the 2015 decision Obergefell v. Hodges, which required the states to recognize same-sex marriage. Even deeply conservative justices like Clarence Thomas and Samuel Alito, as well as John Roberts, said they support the reasoning in the Griswold case during their confirmation hearings.

Clearly, Barrett is deeply conservative and despite her vow to keep her personal views apart from her analysis of cases, it’s more than likely she will work to eviscerate the legal underpinnings of these landmark civil rights cases. To do so would undercut the legitimacy and credibility of the court, which must mirror public opinion and not swing extremely in any one direction.

The law and the court must remain stable but vibrant enough so that society can advance.

— The editorial board