Overpowering Democratic opposition, Senate Republicans are set to confirm Amy Coney Barrett to the Supreme Court, approving President Donald Trump’s nominee a week before Election Day and securing likely conservative court dominance for years to come.
Trump’s choice to fill the vacancy of the late liberal icon Ruth Bader Ginsburg potentially opens a new era of rulings on abortion, the Affordable Care Act and even a potential dispute over his own election. Democrats have been powerless to stop Trump’s third justice as Republicans race to reshape the judiciary
Barrett is just 48, and her confirmation will solidify the court’s rightward tilt.
Monday’s vote is the closest high court confirmation ever to a presidential election and the first in modern times with no support from the minority party. The spiking COVID-19 crisis has hung over the proceedings. Vice President Mike Pence’s office said Monday he would not preside over the Senate session unless his tie-breaking vote is needed after Democrats asked him to stay away when his aides tested positive for COVID-19.
With Barrett’s confirmation all but assured, Trump was expected to celebrate with an event at the White House after the late-evening vote.
“This is something to be really proud of and feel good about,” Senate Majority Leader Mitch McConnell said during a rare weekend session Sunday ahead of voting. He scoffed at the “apocalyptic” warnings from critics that the judicial branch was becoming mired in partisan politics, even as he declared that “they won’t be able to do much about this for a long time to come.”
Pence’s presence presiding for the vote would have been expected, part of the Republican celebration. But Senate Democratic leader Chuck Schumer and his leadership team said that it would not only violate virus guidelines of the Centers for Disease Control and Prevention, “it would also be a violation of common decency and courtesy.”
Some GOP senators tested positive for the coronavirus following a Rose Garden event with Trump to announce Barrett’s nomination, but they have since said they have been cleared by their doctors from quarantine. Pence’s office said the vice president tested negative for the virus on Monday.
Democrats argued for weeks that the vote was being improperly rushed and then during an all-night session that it should be up to the winner of the Nov. 3 election to name the nominee. However, Barrett, a federal appeals court judge from Indiana, is expected to be seated swiftly, and begin hearing cases.
Several pre-election matters are awaiting decision just a week before Election Day, and she could be a decisive vote in Republican appeals of court orders extending the deadline for absentee ballots in North Carolina and Pennsylvania.
The justices also are weighing Trump’s emergency plea for the court to prevent the Manhattan District Attorney from acquiring his tax returns. And on Nov. 10, the court is expected to hear the Trump-backed challenge to the Obama-era Affordable Care Act.
Trump has said he wanted to swiftly install a ninth justice to resolve election disputes and is hopeful the justices will end the health law known as “Obamacare.”
During several days of public testimony before the Senate Judiciary Committee, Barrett was careful not to disclose how she would rule on any such cases.
She presented herself as a neutral arbiter and suggested, “It’s not the law of Amy.” But her writings against abortion and a ruling on “Obamacare” show a deeply conservative thinker.
Sen. Lindsey Graham, R-S.C., the chairman of the Judiciary Committee, called her “a conservative woman who embraces her faith. She’s unabashedly pro-life, but she’s not going to apply ‘the law of Amy’ to all of us.”
At the start of Trump’s presidency, McConnell engineered a Senate rules change to allow confirmation by a majority of the 100 senators, rather than the 60-vote threshold traditionally needed to advance high court nominees over objections. That was an escalation of a rules change Democrats put in place to advance other court and administrative nominees under President Barack Obama.
On Sunday, the Senate voted 51-48 to begin to bring the process to a vote. Two Republicans, Lisa Murkowski of Alaska and Susan Collins of Maine, voted against advancing the nominee, and all Democrats who voted were opposed. California Sen. Kamala Harris, the vice presidential nominee, missed the vote while campaigning in Michigan.
Monday’s final tally was expected to grow by one after Murkowski announced her support for the nominee, even as she decried filling the seat in the midst of a heated race for the White House.
“While I oppose the process that has led us to this point, I do not hold it against her,” Murkowski said.
Collins, who faces a tight reelection fight in Maine, remains the only Republican expected to vote against Trump’s nominee.
“My vote does not reflect any conclusion that I have reached about Judge Barrett’s qualifications to serve,” Collins said. “I do not think it is fair nor consistent to have a Senate confirmation vote prior to the election.”
By pushing for Barrett’s ascension so close to the Nov. 3 election, Trump and his Republican allies are counting on a campaign boost, in much the way they believe McConnell’s refusal to allow the Senate to consider Obama’s nominee in February 2016 created excitement for Trump among conservatives and evangelical Christians eager for a Republican president to replace the late Justice Antonin Scalia.
Barrett was a professor at Notre Dame Law School when she was tapped by Trump in 2017 for an appeals court opening. Two Democrats joined at that time.