by Lincoln Institute | October 08, 2020

Mitch McConnell is right: Amy Coney Barrett should be confirmed as a United States Supreme Court Justice, and the confirmation should take place before Election day, 2020.

The argument for doing so is plain: it is Constitutional. The argument for opposing a pre-election confirmation is equally plain: her opponents are increasingly confident that they could do better later, either after the election if a Democrat wins the special Senate election in Arizona, or after a new Senate is sworn in next year, if Democrats win back the Senate majority. Which of these arguments occupies the higher ground? The Constitutional argument in favor of a pre-election confirmation, obviously. The counter argument is no principled argument at all – it’s purely political.

Many in the media and in the Democrat party have seized on what they call the hypocrisy of the Republican argument for confirming Barrett before the 2020 election, because they hold that it is the opposite of the argument Mitch McConnell concocted not to confirm or even grant hearings to President Obama’s nominee Merrick Garland shortly before the 2016 elections. Frankly, the argument for confirming Barrett now is actually stronger than the argument he used against confirming Garland.  McConnell won the day with his comparatively weaker argument in 2016. He will win the day easily with his strong, simple Constitutional argument in 2020. There is an opening on t he Court, the President has the power to nominate a prospective Justice, he has done so, and the Senate can hold hearings and a confirmation vote within the time between now and the election, which is well within the recent Senate timeframe norms for Supreme Court nominees.

Not only is the Democrat argument against a timely confirmation of Barrett grounded entirely in politics and the lust for power rather than in principle, it is also delightfully ironic that the fix they find themselves in is essentially of their own making. It’s all related to the applicability of the Senate’s arcane filibuster that requires 60 votes rather than a mere majority for confirmation. Washington Post columnist Mark Thiessen made the point succinctly in a recent column when he said, “They were for the filibuster under Bush, against it under Obama and for it again under Trump — and now they want to eliminate it… Their first blunder came in 2003 and 2004, when they broke precedent by blocking 10 of President George W. Bush’s judicial nominees” for Federal Circuit Courts. As Thiessen put it, “The Senate Democrats’ actions were so brazen that in 2005, Republicans briefly considered elimination the judicial filibuster. But in the end, they backed down – recognizing that, as then-Senator Joe Biden warned, … you may own the field right now, but you won’t own it forever.” But when Democrats won the Senate majority back a short time later, “Senate Majority Leader Harry Reid did exactly what Democrats has warned Republicans not to do, eliminating the filibuster for lifetime appointments to the Federal Bench for all but Supreme Court nominees… This was their second catastrophic mistake,” writes Thiessen, “and it came back to haunt them when the Senate flipped back to GOP control. … Had it not been for the two breaches of precedent by Democrats … Senate Majority Leader Mitch McConnell would never had enough support to block a vote on Merrick Garland.”

Even then, however, Senate Democrats under Harry Reid bragged in October of 2016 that when Hillary Clinton won the Presidency and Democrats regained control of the Senate, they would eliminate the filibuster for the Supreme Court.” Instead, Donald Trump won, and the Senate Majority was in Republican hands. They could mount no coherent argument against McConnell’s move to do exactly what Harry Reid had boasted he would do. That set the stage for Neil Gorsuch and Brett Kavanaugh’s confirmations, and now they are out of weapons to stop the confirmation of Amy Coney Barrett.

If this were the game of bridge rather than the game of politics, such a move might be called an auto-finesse. They paved the way for her confirmation. Mitch McConnell is right, as I said at the outset – and Senate Democrats have made him so. Amy Coney Barrett should be confirmed prior to November 3rd., Election Day 2020.