Just after 8 P.M. on Monday, at the end of a thirty-one-hour session of the Senate, Senator Chuck Grassley, Republican of Iowa, who was presiding, peered from the podium and asked if any senators still needed to vote. Hearing that none did, he said, “The ayes are fifty-two. The nays are forty-eight. The nomination of Amy Coney Barrett to be an Associate Justice of the Supreme Court is confirmed! ” He said it as if he were announcing the winner on a game show, and the Republican senators in the room reacted accordingly, standing and cheering. Barrett wasn’t so much the victor as the prize—their prize.
They had treated the passing of Justice Ruth Bader Ginsburg, just five weeks earlier, as the starting bell in a bitterly exuberant race. She had been dead only a few hours when Mitch McConnell, the Majority Leader, announced that his party would toss aside both decorum and its own rationale for blocking the nomination of Merrick Garland, after Justice Antonin Scalia had died nearly nine months before the 2016 election. The Republican senators had, in this final stretch, worked through the weekend and staged an overnight session on Sunday so that the hours required procedurally for debate could be squeezed into as few days as possible—since, in the end, it didn’t matter whether anyone was listening. And now, a week and some hours before Election Day, and two weeks before the Supreme Court is scheduled to hear a challenge to the Affordable Care Act, the Republicans had their Justice, losing only one of their number (Susan Collins, of Maine, who is running in a close race) in the final vote. It was time to celebrate.
The seats were already being set up on the South Lawn of the White House; the Trump Administration wanted Barrett not only confirmed but sworn in before the night was out. The White House Rose Garden had been the setting, in September, for Trump’s announcement of Barrett’s nomination, a Saturday afternoon fête that appears to have been something of a superspreader event, with everyone from the president of Notre Dame (where Barrett graduated from law school and later taught) to the President of the United States testing positive for the coronavirus in the following week. Perhaps the feeling, on Monday, was that the darkness and the different angle on the White House would help to avoid reminders of that event. (A new spate of cases in the offices of Vice-President Mike Pence, and of Senator Kelly Loeffler, of Georgia, had already brought back those memories, and prompted Chuck Schumer, the Minority Leader, to tell the Democrats not to linger on the Senate floor; most cast their votes quickly and left.) This time, more people in the crowd, including Senator Mike Lee, of Utah, who had tested positive as part of the Rose Garden outbreak, were wearing masks, which mitigated the infection risk but not the shamelessness.
The President and Melania Trump, and Barrett and her husband, Jesse, did not wear masks. Neither did Justice Clarence Thomas, who was there to swear in his new colleague. Trump said that Thomas had earned the “respect and gratitude of all Americans,” which is pushing the truth. Thomas was only forty-three when he was confirmed, in 1991, also by a vote of 52–48, after contentious hearings in which he was accused of sexual harassment. (He denied the accusations.) Almost thirty years later, he is the current Court’s longest-serving Justice, and one of its most conservative. Barrett is forty-eight and, in the Republican vision, she, as well as Trump’s other appointees—Neil Gorsuch, who is fifty-three, and Brett Kavanaugh, fifty-five—will inherit the Court. The baseline conservative majority is now 6–3, counting Chief Justice John Roberts, who is an occasional swing vote, and 5–4 without him.
Trump, in his remarks on the South Lawn, claimed that the country “owes a great debt of thanks” to McConnell, and he also thanked Senator Lindsey Graham, the chair of the Judiciary Committee, who had done his part in staging the breakneck confirmation hearings. Trump reeled off the names of ten senators who had made it to the South Lawn, including Martha McSally, of Arizona, who is behind in her race and has, lately, been trying to make up ground by issuing Trump-style personal attacks against her opponent, Mark Kelly; she apparently didn’t want to pass up an opportunity to appear in the President’s vicinity. When Trump said that Barrett’s seven children had become “very, very popular in this nation,” Barrett laughed appreciatively. He added that he was sure she would make people “very, very proud.”
As if there hadn’t been enough hollow gestures in the course of the day, Trump also mentioned Ginsburg’s legacy. That he did so served only to highlight how sour and cynical the process has been. In the overnight Senate session, John Cornyn, Republican of Texas, said that Ginsburg had been confirmed despite being “far outside of the mainstream of American law.” And at a press conference after the vote, Senator Marsha Blackburn, Republican of Tennessee, said that the Democrats opposed Barrett because “she would not submit to the women’s agenda that the leftists think that a woman has to submit to in order to be recognized as accomplished, as fully female.”
Then Barrett’s husband held the Bible as Thomas administered the oath. In remarks afterward, the new Justice thanked McConnell, Graham, and the White House staff for guiding her through the confirmation—and there, at least, the debt is genuine. She said that the “rigorous” confirmation process had made clearer to her than ever the difference between the legislative and the judicial branches: the former, she said, could take into account “policy goals,” while it was “the job of a judge to resist her policy preferences.” She continued, “A judge declares independence not only from the Congress and the President but also from the private beliefs that might otherwise move her.”
Perhaps an optimist would see this as a sign that Barrett might surprise her sponsors, to whom her policy preferences are well known. They don’t seem very worried, though; McConnell and his allies know empty words when they hear them. Senator Josh Hawley, Republican of Missouri, in remarks in the marathon session before the confirmation vote, said, “This is the most openly pro-life judicial nominee to the Supreme Court in my lifetime. This is an individual who has been open in her criticism of that illegitimate decision Roe v. Wade.” She was not open about it in the hearings, of course, in which she declined to say even if a President ought to be committed to a peaceful transfer of power.
It is more likely that Barrett was making the same rote protestation that other jurists who, like her, are textualists and originalists, do about how they meekly defer to the political branches, and refuse to read anything into the Constitution, until they don’t—as when, to cite one example from Barrett’s career, a case involving gun control came before her. She might just as easily have been telegraphing that, while she would be sorry on a personal level for anyone who might be hurt if the Court strikes down significant parts of the Affordable Care Act, it really wasn’t her business. Either way, the country will likely have more clarity about Barrett’s judicial and policy preferences when she asks her first question in the oral arguments in the A.C.A. case, on November 10th. Or it may come sooner. Even as her confirmation was concluding, her new colleagues issued a 5–3 ruling, with the conservatives in the majority, limiting the time for counting mail-in ballots in Wisconsin. There will be more such cases in the days to come. Trump, whom Barrett, smiling and chatting, joined on the balcony of the South Portico after Monday’s ceremony, wouldn’t have it any other way.
