With only two weeks until the presidential election, the rapid push to get Amy Coney Barrett confirmed to the Supreme Court left many people with questions.
How do Supreme Court confirmations work?
According to Article II of the Constitution, the Senate has the power to confirm a Supreme Court nominee after they have been nominated by the President. The nomination then goes to the Senate Judiciary Committee, which, according to the Georgetown Law Library, collects the necessary records from sources such as the FBI in a process that usually takes about a month before holding a hearing.
The hearing gives witnesses the floor to defend or denounce the nominee’s character and judgment and gives the senators a chance to question the nominee. The resulting committee vote is then sent to the full Senate where senators debate the issue and eventually vote to confirm or reject the nomination. If a simple majority of “present and voting” senators vote to confirm the nominee, the nominee is then appointed to the Supreme Court.
The entire confirmation process usually takes about two months, according to CNBC.
What is unique about Barrett’s confirmation?
President Trump nominated Barrett on Sept. 26, less than 40 days until the election. The proximity of the nomination to the possibility of a Democrat assuming either the presidency, the Senate or both meant that Republicans had to move quickly if they wanted Trump’s nominee to be confirmed.
In March of 2016, President Barack Obama nominated Merrick Garland to succeed the late Justice Antonin Scalia. The Republican-held Senate refused to hold a confirmation hearing, citing the nomination’s proximity to election day that year.
“I want you to use my words against me. If there's a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, ‘Let's let the next president, whoever it might be, make that nomination,’” Senator Lindsey Graham said in 2016.
Graham has since gone back on these statements, as have many other Republicans such as Senate Majority Leader Mitch McConnell, who refused to hold the hearing for Garland in 2016.
This hypocrisy has been met with much opposition from the left, who argue that Republicans should stand by the precedent they set four years ago. Democratic Presidential nominee Joe Biden has been particularly outspoken on this issue.
“The United States Constitution was designed to give the voters one chance to have their voice heard on who serves on the Court,” Biden said in a statement. “That moment is now and their voice should be heard. The Senate should not act on this vacancy until after the American people select their next president and the next Congress.”
Barrett's confirmation began on Monday, Oct. 12 and ended on Thursday, Oct. 15. Due to the pandemic, many Democratic senators chose to ask questions over video call.
The hearing was marked by Barrett refusing to give straight answers to many questions, claiming that she did not want to comment on matters that could come up in future rulings. She avoided questions surrounding topics like climate change, abortion and other contentious issues, claiming a precedent popularized by late Justice Ruth Bader Ginsburg that nominees don’t respond to political issues.
“Justice Ginsburg with her characteristic pithiness used this to describe how a nominee should comport herself at a hearing: no hints, no previews, no forecasts. That had been the practice of nominees before her,” Barrett said during her hearing.
In response to Senator Richard Blumenthal’s (D-Conn.) question on whether humans cause climate change, Barrett said, “I don't think that my views on global warming or climate change are relevant to the job I would do as a judge, nor do I feel like I have views that are informed enough, and I haven't studied scientific data. I'm not really in a position to offer any kind of informed opinion.”
The Senate Judiciary Committee will vote on Barrett’s confirmation on Oct. 22.
Thumbnail: Wikimedia Commons courtesy of Rachel Malehorn