I heard through the grapevine that advisers to President Donald Trump told him that his nominee to replace the late Ruth Bader Ginsburg on the United States Supreme Court would essentially act as his running mate for the upcoming presidential election. His advisers who espouse conventional political views supposedly advised him to pick Barbara Lagoa, a current 11th Circuit judge and a former Florida Supreme Court judge, on the basis that she would deliver Florida in the Electoral College. As usual, President Trump defied conventional wisdom and gambled big time by picking Judge Amy Coney Barrett, the darling of his conservative base.
We’re about to see the effect that her nomination hearings will have on the upcoming presidential election, and both political parties face political perils of a potent variety in her nomination hearings.
The foremost issue in Judge Barrett’s nomination hearings will undoubtedly be abortion. Her deeply held Catholic faith has previously been maligned in her confirmation hearing for the Seventh Circuit as being virulently anti-abortion. Even before President Trump announced her nomination to the Supreme Court, partisans from both political parties began to wage war over whether her faith rendered her anti-abortion, whether abortion is evil or constitutionally protected, and whether her faith prevents her from being a fair and unbiased judge.
As usual, any debate regarding abortion stirs political passions more than any other socio-political issue in American politics. The debate has, and will continue to, go far beyond the issue of abortion, and it will be framed as whether Judge Barrett is anti-women’s rights. The sheer violence of this debate – one that will devolve into a debate of hate rather than one of constitutional substance – could have devastating consequences for President Trump and his Democratic opponent, former Vice President Joe Biden.
You see, Mr. Biden’s running mate, Senator Kamala Harris, will be one of the senators who will question Judge Barrett during her nomination hearings. Senator Harris herself will likely be mindful of the political ramifications of her actions in what will be a much watched political event this year, and Judge Barrett will undoubtedly conduct herself with the decorum and dignity becoming a federal judge.
However, neither Senator Harris or Judge Barrett will be the primary actors in this political play. The real stars will be the senators who they are associated with. Senator Harris’ Democratic colleagues have previously demonstrated their ability to go off the rails in questioning judicial nominees, including Judge Barrett herself. Judge Barrett’s staunchest Republican defenders have also demonstrated that they will go to extraordinary lengths to protect a judicial nominee at the first sign of a legitimate concern.
The last Supreme Court nomination – Brett Kavanaugh – that our country witnessed was an unmitigated political disaster for everyone involved. Sure, the Republicans further solidified a fragile 5-4 majority on the Supreme Court, but they did not do themselves any political favors in the process because nothing will ever remove doubts in American minds that his nomination was rammed through despite allegations of sexual misconduct that deserved an investigation that wasn’t political theater. The Democrats, on the other hand, left a bad taste in American mouths by appearing to stop at nothing, including possibly manufacturing sexual assault allegations, to railroad a judicial nominee for political purposes.
The Republicans, however, enjoy a slight advantage this time around. Judge Barrett is a woman. The odds overwhelmingly indicate that there is no man who will tell the whole country that he’s a wuss who rejected the romantic advances of Judge Barrett 20 years ago. That means the Democrat senators will have to find a new avenue to attack Judge Barrett in opposition to her nomination, and the public indications are that they will focus on her religious beliefs in relation to abortion.
America may no longer be a Christian nation (I maintain that it is a godless nation right now), but American social values still place substantial respect on a person’s religious convictions. Attacking Judge Barrett’s religious convictions as the Democrat senators did in her first nomination will be the most brazen and publicly pronounced attack on Christian values that our country has seen to date. If American social values hold firm, that attack could prove politically disastrous for Joe Biden because his running mate, Senator Harris, will be inescapably linked to the senators conducting the attacks, and the attack itself will easily appear to vindicate a lot of the arguments that President Trump has made about Democrats being hostile to Christians. In other words, it could easily hand President Trump reelection.
On the other hand, the Democrat senators have legitimate questions to ask Judge Barrett about how her faith will interact with her judicial decisions. Such questions are not anathema in American history and were even asked of President Kennedy when he was running for president. Republican senators will be making a major political blunder by rushing to condemn legitimate questions and defend Judge Barrett’s faith as being untouchable. Her nomination will carry the discussion of a serious and sensitive legal issue, abortion, and, by extension, a broader discussion of women’s rights.
She will need to answer fair questions fairly. Republicans condemning legitimate and fair questions will confirm Joe Biden’s and the Democrat Party’s argument that Republicans want to take away women’s rights on the basis of their personal convictions rather than what the law is. In other words, it could hand Joe Biden an election to the presidency of the United States.
Consequently, this is not another ordinary Supreme Court nomination of the Kavanaugh or Gorsuch variety. Judge Barrett’s nomination hearings will have political ramifications on the presidential election, and, while the contestants in that election may manage to behave themselves, their colleagues’ misbehavior may cost their candidate the election.
Caution and good behavior, however, rarely correlate positively to higher stakes in American politics. I expect passions to be inflamed more than we have ever seen before for a Supreme Court nomination because of its potential effect on the presidential election. We’ll see who does the most damage to their own cause when the dust settles.