The Rushed Confirmation of Amy Barrett

Today, President Trump nominated 7^th Circuit Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg on the Supreme Court. As previously reported, any of the potential replacements would move the ideological center of the Supreme Court to the right. Importantly, while the rightward shift of the center of the court is notable, the ideological move from Justice Ginsburg to nominee Barrett is significant. Barrett’s appointment would make Brett Kavanaugh the median Justice, virtually guaranteeing conservative victories on a range of issues facing the court. But whether Trump is successful in this effort will depend on an elaborate game of parliamentary procedure and timing.

Under regular procedure, the Senate Judiciary Committee takes about a month to collect records and information about the nominee. Next, the committee holds hearings in which the nominee and other witnesses answer questions from the senators. Finally, the committee votes on whether to advance the nomination to the Senate floor. If the nomination receives a majority in committee, the Senate debates and votes to confirm.

But given President Trump’s explicit desire to have Judge Barrett confirmed before the November 3^rd election, the normal process will likely be rushed. There are just 38 days until that deadline, and since 1975 it has taken 68 days—on average—to confirm a Supreme Court Justice. Only Justice Sandra Day O’Connor and the late Justice John Paul Stevens, nominated in 1981 and 1975 respectively, were confirmed within that 38-day time span.

But even that comparison overstates how much time the Senate has to satisfy the political timeline Trump has demanded. The current Senate calendar has only 8 days in session before the November election. Given other urgent issues, including funding to keep the government open, it seems unlikely that the Senate will be able to confirm Judge Barrett before the election. This is assuming, of course, that Senate Majority Leader Mitch McConnell and Judiciary Chairman Lindsey Graham will not choose to expedite the process by adding days to the Senate calendar or limiting the number of days for hearings and vetting. If they are willing to do so, the Republican majority can limit debate and vote on the nomination in an expedited process.

If Senate confirmation proves impossible on such a tight timeline, it is entirely possible for Judge Barrett to be confirmed during the lame-duck session between the November election and the seating of the next Congress on January 3^rd, 2021. But doing so is risky: if voters elect a Democratic majority in the Senate, it could be politically unpopular to rush a conservative justice to confirmation under the wire, raising the possibility moderate GOP senators will defect on the vote.

Outside of the details of this rushed confirmation process, it is important to get a better understanding of Judge Barrett’s jurisprudence in order to predict how she might rule on the most defining issues of our time.

As a former law professor at Notre Dame, Judge Barrett has generated a large body of work opining on jurisprudence. In one notable 2012 article, Precedent and Jurisprudential Disagreement,  Barrett expands on her views of stare decisis – a court’s obligation to uphold a judicial principle established in a previous case with similar issues or facts.

In the Supreme Court, arguments built in statutory precedents (e.g., the plain text of the Constitution and federal law) are generally the strongest, followed by common law, and then precedents based on constitutional interpretation. However, constitutional precedents are of the utmost importance to those who see the Supreme Court as an agent of social progress. Following precedent preserves the advances of Supreme Court decisions – like Roe v. Wade – that have interpreted the Constitution to enshrine new rights.

Barrett’s analysis of stare decisis suggests that as a Justice, she would be willing to overturn existing cases in controversial areas, like Roe v. Wade. Barrett stakes a forceful originalist position by arguing that constitutional precedents are rightfully weak because, unlike statutes which can be relatively easily changed, “the onerous process of constitutional amendment makes mistaken constitutional interpretations difficult for the People to correct.” In other words, judges should not base their decisions on the precedence of a past case because it is possible that the previous court got it wrong. Rather, they should always refer to the original text of the Constitution and other statutes, overturning any past cases that drew a different conclusion.

The Senate has a long and fraught road ahead to confirm Barrett on the timeline Trump has set. If that should happen, court watchers must  pay attention to the way in which Judge Barrett engages with precedents. Given her writing before joining the 7^th Circuit, it is possible that many major precedents may be overturned in the years to come.