But whether Barrett is confirmed isn’t the only hugely important question here; so, too, is exactly how we could get to that point. And with November’s election looming either shortly after or shortly before the confirmation vote — and voters potentially being swayed by what they witness — there is plenty of pressure on both Republicans and Democrats to play their cards right.
Here are a few key questions.
How hard do Democrats go?
In 2018, before Trump picked Brett M. Kavanaugh for the last Supreme Court vacancy, I argued why I thought picking Barrett might appeal to him. One of the biggest reasons: Her selection could tempt Democrats into the kind of culture war that Trump craves — particularly by inviting attacks on her religiosity.
Barrett got passed over that time, but the argument definitely holds today, particularly with Trump’s own reelection looming.
When Trump nominated Barrett to a federal appeals court seat in 2017, Democrats repeatedly raised concerns about how her Catholic faith might inform her jurisprudence. Sen. Dianne Feinstein (D-Calif.), the ranking Democrat on the Judiciary Committee, at one point told Barrett that “the dogma lives loudly within you, and that’s of concern.” Sens. Mazie Hirono (D-Hawaii) and Richard J. Durbin (D-Ill.) also raised the topic, with Durbin pressing Barrett on what her definition of an “orthodox Catholic” was.
The question from here is whether Democrats are tempted to go down this road again, and just how hard they go after Barrett, period. While Barrett is seen as a potentially divisive pick — she was divisive enough that Senate Majority Leader Mitch McConnell (R-Ky.) told Trump in 2018 that others would be more easily confirmed — that divisiveness could lure Democrats into overreaching in opposing her.
Which is what some argue Feinstein et. al. did in 2017. The New Yorker’s Jeffrey Toobin argued Saturday that Barrett’s 2017 confirmation hearings effectively set the stage for what we see today, calling Feinstein’s line of questioning “so incompetent, so inept, so apparently religiously discriminatory that Amy Coney Barrett became a hero to religious conservatives.”
Democrats and their base are apoplectic that Republicans are moving forward with the nomination, despite saying in 2016 that the winner of the presidential election should be allowed to make such a nomination. But being out for blood isn’t always the best strategy.
Reporting suggests that Democrats are planning to focus more on what Barrett’s ascension to the Supreme Court could mean practically on issues such as Obamacare. But Democrats’ performances at these hearings haven’t always been confidence-inspiring. And the other big issue likely to come up is Roe v. Wade, given how pivotal Barrett could be on that issue, and it’s difficult to see how that comes up without drifting into a discussion of her faith.
There will be plenty of pressure from the base to do something — anything — to prevent a 6-to-3 conservative majority on the Supreme Court. Control of the Senate for the next two years is one thing; control of the nation’s highest court, which is increasingly vital in a time of constant congressional gridlock, for decades to come is quite another.
Democrats don’t have the final say, though, with Republicans having four votes to spare right now and Barrett’s confirmation looking very likely. And Republicans will be hopeful that Democrats’ effort to push back on a mother of seven children could harm them at the ballot box.
They hoped that would be the case in 2018 after the Kavanaugh hearings, though, and Democrats still won the House. But some suggested it might have helped the Republicans win or hold conservative-leaning Senate seats.
Vote before or after the election?
Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) announced Saturday that the Barrett confirmation hearings would begin Oct. 12, setting the stage for a possible vote to confirm shortly before the Nov. 3 election. The No. 3-ranking Senate Republican, Sen. John Barrasso (Wyo.), on Saturday predicted a pre-election confirmation “if everything moves along smoothly.”
But as the Kavanaugh hearings showed us, things don’t always go so smoothly. What’s more, there remain questions about whether it’s advantageous for Republicans to be doing all of this now — and so quickly — rather than after the election in the lame-duck session.
While Kavanaugh might have helped the GOP hold the Senate in 2018 — an argument that, it bears emphasizing, is debatable — the terrain was significantly different. The map back then was good for the GOP, with many of the key races being in red states. That’s not the case in 2020.
And you have to wonder how this issue being front-and-center might play for the campaigns of GOP senators like Maine’s Susan Collins, Colorado’s Cory Gardner and North Carolina’s Thom Tillis. Collins, in particular, faces an impossible choice in blue Maine: Vote for Barrett and potentially sacrifice your moderate cred, or vote against her and potentially sacrifice support among the GOP base. Gardner would also seem to face a difficult choice in a blue-trending state. Each of them would have more latitude in the lame duck.
There’s also the question of whether, if Republicans think Barrett’s confirmation might help them, they might want to prolong things. Political conventional wisdom has it that voters generally vote more on the prospect of what lies ahead — i.e., what they might fear or want — rather than to reward their side for already having delivered on something. And moving in a historically fast fashion might invite allegations of cramming the nomination through, which could turn off voters.
All of this, of course, depends upon how views of Barrett ultimately solidify. But the GOP has one big reason to press forward sooner than later: If Sen. Martha McSally (R-Ariz.) loses her race, Democrat Mark Kelly could take the seat as early as November, trimming the GOP’s margin of error on the ultimate vote.
How does Barrett play?
Which brings us to our final key question: How do views of Barrett form? All of the above depends on that key question. To the extent that Americans view her positively, there is considerably less risk for Republicans and more peril for Democrats. To the extent that they truly worry about the impact she might have as a Supreme Court justice on issues such as Obamacare and abortion or harbor concerns about pushing through her nomination in an election year, that could accrue to the Democrats’ benefit.
A Washington Post-ABC News poll last week suggested that Americans do have reservations about how this process is being handled. Fully 57 percent said they preferred that the winner of the election fill the seat, while just 38 percent said they wanted the pick to be nominated by Trump and confirmed. A New York Times-Siena College poll showed a similar majority — 56 percent — wanted the next president to fill the seat.
That doesn’t mean they won’t ultimately approve of Barrett’s nomination, but it does suggest skepticism at the outset. From there, it will be up to the two parties to define Barrett.
There is a consensus even among some of Barrett’s critics that she is very smart, and her family — she would be the first Supreme Court justice who is the mother of school-age children, and two of her children were adopted from Haiti — was featured prominently when Trump nominated her Saturday. Barrett in her remarks also took care to pay tribute to the liberal justice she would replace, Ruth Bader Ginsburg, saying she would be “mindful of who came before me.” All of it seemed clearly geared toward undercutting the Democratic argument that she’s some kind of dangerous ideologue.
The earliest polling we have on Barrett comes via a snap poll from YouGov that was conducted after her nomination was announced. It shows that 38 percent have a positive view of her, while 33 percent have a negative view. But registered voters also said they opposed her confirmation by a 49-to-44 margin. And this is merely the beginning of the process, in which the vast majority of people won’t have any real familiarity with who she is or what she has done and said.
Thus begins that debate. The ramifications for both the future of the Supreme Court and the 2020 election are massive.