In a late-night vote on Monday, the Senate confirmed Amy Coney Barrett as the newest associate justice on the US Supreme Court, sealing a 6-3 conservative majority on the panel that has become more and more instrumental in steering the course of US domestic policy in recent decades.
Ms Barrett, 48, who has served on the US Court of Appeals for the Seventh Circuit since 2017, is the fifth woman to serve on the Supreme Court, and just the second woman appointed by a Republican president.
Republicans confirmed Ms Barrett, 48, on a mostly party-line vote, 52-48, just eight days before the US presidential election, the closest date to an election a nominee has ever been seated on the high court, a point of bitter contention with Senate Democrats.
Just four years ago, in 2016, the Senate GOP majority refused to commence confirmation proceedings for Merrick Garland, Barack Obama’s pick to replace the late Justice Antonin Scalia, on the basis that a US presidential election was just seven months away and American voters ought to have a say in whether they wanted Donald Trump or Hillary Clinton to pick Mr Scalia’s successor.
Senate Minority Leader Chuck Schumer issued a word of foreboding to Republicans on Monday, saying they will regret their actions speeding through Ms Barrett’s confirmation before the election in blatant disregard of the precedent they set four years earlier.
“You may win this vote and Amy Coney Barrett may become a justice on the Supreme Court. But you will never, never get your credibility back,” Mr Schumer said, side-eyeing his GOP colleagues on the Senate floor.
When Democrats reclaim a Senate majority, “you will have forfeited the right to tell us how to run that majority,” the New York Democrat told Republicans, perhaps a foreshadowing of Democrats’ openness to scuttling the filibuster if a GOP minority puts up roadblocks to a Democratic administration led by Joe Biden.
Senate Majority Leader Mitch McConnell fired back that Democrats would have done the same thing if the shoe was on the other foot.
“The reason we were able to make the decision we did in 2016,” he said, referring to the GOP blocking Mr Garland’s nomination, “is because we had become the majority in 2014. The reason we were able to do what we did in 2016 and 2018 and 2020 is because we had the majority. No rules are broken whatsoever.”
Mr McConnell punctuated his point: “Elections of consequences.”
Ms Barrett — whose past speeches, media appearances, and federal appeals court decisions depict a staunch “originalist” conservative in the mould of Justice Scalia — will be sworn in by Justice Clarence Thomas at the White House on Monday.
She will begin hearing cases in her new position next Monday, when the Supreme Court returns for a two-week virtual session.
She could make fireworks early.
This fall, the court is set to hear several high-profile cases: one that could determine the fate of the 2010 health care law commonly referred to as Obamacare, one on whether the Trump administration can exclude undocumented immigrants from counting in the reapportionment to states of congressional seats, and two on the president’s immigration policies.
And Mr Trump, who appointed her to replace the progressive icon Justice Ruth Bader Ginsburg last month after Ms Ginsburg from a years-long battle with cancer, has signaled he intends to challenge the results of the 2020 election based on unsubstantiated allegations of voter fraud if initial returns on Election Day show he lost.
During two days of cross-examination hearings earlier this month before the Senate Judiciary Committee, Ms Barrett did not commit to recusing herself on any cases related to the 2020 election, despite Mr Trump’s public statements that he wanted a ninth justice on the court to break any potential ties.
McConnell’s top ‘accomplishment’
Ms Barrett’s confirmation on Monday represents the capstone for Mr McConnell’s efforts over the last four years to remake the federal judiciary in his conservative image.
The newly confirmed justice has “displayed zero willingness to impose personal views or clumsily craft new policy with her gavel,” Mr McConnell said in his penultimate floor speech before her confirmation on Sunday.
“She has demonstrated the judicial humility, the neutrality, and the commitment to our written Constitution that are essential for this office,” the Kentucky Republican said.
Since the beginning of 2017, Mr McConnell has confirmed 53 appeals court judges, 161 federal district court judges, and three of the nine Supreme Court justices.
More than one out of every four federal judges in the US have been chosen by Mr Trump and confirmed in Mr McConnell’s Senate.
The appointment of those conservative legal minds to the court — men and women who were hand-picked by the president with the express purpose of, in the GOP’s own words, rolling back Obamacare, women’s access to abortion, gun control measures, and same-sex marriage — is “the most significant, long-lasting accomplishment of the last four years,” Mr McConnell has been fond of saying.
Vice President Mike Pence had planned to preside over the confirmation vote, but canceled those plans amid protests from Senate Democrats who noted in a letter on Monday that at least five people in his immediate orbit have tested positive for Covid-19 in recent days.
Mr Pence tested negative on Monday, his office has said.
Menace for liberals
While Republicans have heralded Ms Barrett, a member of the conservative legal group the Federalist Society, as a “brilliant” legal mind, Democrats and liberal advocacy groups have portrayed her constitutional originalism as a menace to Obamacare, abortion rights, gun control legislation, LGBTQ rights, and virtually every other liberal policy priority.
She repeatedly evaded questions from Democrats at her confirmation hearings earlier this month aimed at showing viewers her conservative predisposition.
When asked by California Democratic Senator Dianne Feinstein if she agreed with her mentor Justice Scalia that the Supreme Court’s landmark 1973 Roe v Wade decision guaranteeing women’s abortion rights was wrongly decided, Ms Barrett invoked liberal Justice Elena Kagan’s answers during her 2010 hearings that “the canons of judicial conduct would prohibit” her from expressing a view.
“If I express a view on a precedent one way or another … it signals to litigants that I may tilt one way or another on a pending case,” Ms Barrett said.
“I can’t pre-commit and say, yes, I’m going in with some agenda,” she said using the same argument to duck similar questions on several other hot-button issues.
Ms Barrett’s highly contentious confirmation process could have immediate consequences on the makeup of the Senate, as it has become a polarising campaign issue for several GOP senators up for re-election in precarious races this fall.
Four — Lindsey Graham of South Carolina, John Cornyn of Texas, Joni Ernst of Iowa, and Thom Tillis of North Carolina — sat on the Judiciary Committee that oversaw the Barrett hearings.
Democrats must gain a net pickup of four seats — or three seats plus the presidency — to take back a Senate majority.
Maine Republican Susan Collins was the only senator to cross party lines for Monday’s vote, saying in a floor speech on Sunday that she was following the GOP’s “precedent set four years ago” not to seat a Supreme Court nominee this close to a presidential election.
While Ms Collins commended Ms Barrett’s qualifications for the position, she cast a “nay” vote to be “fair and consistent,” she said.
Ms Collins, who voted to confirm Supreme Court Justice Brett Kavanaugh in 2018 amid a cloud of sexual assault allegations against him from his days in college and high school, is the underdog in her Senate race against Democrat Sara Gideon. Inside Elections with Nathan L Gonzales rates that race Tilts Democratic.
Mr Graham, the Judiciary panel’s chairman, is in a virtual tie in the polls with his Democratic opponent, Jaime Harrison, in deep-red South Carolina, a shocking development that has earned national headlines and helped Mr Harrison rake in more than $57m in campaign donations in the third quarter.
Mr Harrison has relentlessly pummeled Mr Graham on the local airwaves and in digital advertisements for going back on his promise from four years ago — and two years ago — not to seat a Supreme Court nominee during the 2020 presidential election.
But Mr Graham has reversed course on that position with zero apologies, making his stewardship of Ms Barrett’s nomination the central pillar of his re-election campaign down the home stretch of the voting period in South Carolina.
All across the Palmetto State this October, thousands of political signs have dotted front yards, traffic medians, and grassy highway curbs with the bolded message “#FillTheSeat” underneath the words “Lindsey Graham for US Senate.”
Mr Graham’s Judiciary panel “got it right when it came to Judge Barrett,” he said on Thursday after advancing her nomination out of committee and onto the Senate floor for final consideration.
“It would have been wrong to deny her a vote," Mr Graham offered as a closing argument. "We did the right thing.”