The decision to protest the legitimacy of the appointment and then abstain is a political masterstroke. It satisfies the base by showing that Democrats will not assist in something they contend is a charade. It lays the blame for the Barrett appointment squarely on Trump and Senate Majority Leader Mitch McConnell (R-Ky.), which Democratic partisans were already inclined to believe. But it also doesn’t rise to the level of activity that will gain the attention of moderates who do not prioritize court appointments in their voting. The daily fixation on Brett M. Kavanaugh’s fitness was the defining feature of his nomination, and it arguably hurt Democrats in the run-up to the 2018 election. Abstention and relative public quiet about Barrett’s nomination avoid that potentially calamitous result for this year’s races.
That doesn’t mean Democrats are doing the right thing for the country. The president has the constitutional right to make an appointment to the Supreme Court to fill a vacancy no matter when that opening arises in the election cycle. The Senate has the constitutional power to assess that nomination, too. All the talk about breaking unwritten norms is nothing more than an election-year talking point that masks the Democrats’ real fear: a conservative-controlled court that could frustrate progressive activist jurisprudence and perhaps even roll back some prior liberal court opinions.
Polls show Americans aren’t buying the Democrats’ arguments. Both a Politico-Morning Consult poll and a Gallup poll found a majority of Americans support Barrett’s confirmation. The Politico poll and another from the New York Times and Siena College also found that nearly 50 percent believe it’s proper that she be assessed now rather than wait until after the elections, as Democrats have argued. Those who say the hearings should wait until after the election, according to the Politico poll, are strongly tilted toward the party’s base: liberals, strong opponents of Trump and Democrats. The Times-Siena poll also found it was overwhelmingly Democratic voters who supported delaying the confirmation. Independent voters backed immediate action on Barrett’s nomination by a 49-40 margin, even as they supported Joe Biden by a 46-37 gap.
McConnell says the full Senate will vote on Barrett’s confirmation on Monday. We should expect many Senate Democrats will also boycott this vote, although some who represent purple states and thus rely more on independent voters, such as Sen. Joe Manchin III (W.Va.) and Kyrsten Sinema (Ariz.), might show up anyway. That egregious example of virtue signaling will also let them slip through the confirmation battle in the best political shape possible.