DESPITE THE CONSTERNATION of the Democrats, the ascension of Amy Coney Barrett to the US Supreme Court appears to be a simple numbers battle they have little chance of winning. 

Donald Trump’s conservative pick to succeed the late-Ruth Bader Ginsburg faced a series of hearings in the Senate in recent days and her testimony is unlikely to have changed any minds in either the Democrat or Republican camps.

The Republicans have a 53-47 majority in the Senate and, barring any last-minute dissent among the ranks, Barrett looks set to take her seat on the Supreme Court prior to the hotly-contested 3 November election between Trump and Joe Biden. 

US Supreme Court

Barrett has been a federal judge in Indiana since 2017, when Trump nominated her to the Chicago-based 7th US Circuit Court of Appeals.

She was previously a long-standing University of Notre Dame law professor and clerked for the late Justice Antonin Scalia, whom she called her “mentor” as she accepted Trump’s nomination at an event last month – which incidentally has subsequently been described as a superspreader event of Covid-19.

At the age of 48, she would be the youngest justice on the current court if  – as expected – she is confirmed.

She is a committed Roman Catholic as well as a firm devotee of Scalia’s favoured interpretation of the Constitution known as originalism.

Republicans have widely praised her, while Democrats worry her votes could chip away at the Roe v Wade decision legalising abortion and erode health care protections. They argue that her philosophy is too conservative and rigid.

Writing in TheJournal.ie last week, law lecturer and columnist Larry Donnelly said that choosing Barrett may be seen as a boost for Trump’s Conservative base heading into the election little over two weeks away. 

“Whether she makes it onto the court or not, President Trump has kept his promise to cultural traditionalists, evangelical Christians especially, and remade the federal judiciary in accordance with their wishes,” he wrote.

During this week’s hearings before the Senate judiciary committee, Barrett was questioned on these conservative views that have been ascribed to her, and was pressed on issues like abortion and the soon-to-be-reviewed Affordable Care Act, also called Obamacare.

In her opening statement to the committee this week, she laid out what approach she’d take on the Supreme Court bench.

“Courts have a vital responsibility to enforce the rule of law, which is critical to a free society,” Barrett said. “But courts are not designed to solve every problem or right every wrong in our public life.”

“The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the people. The public should not expect courts to do so, and courts should not try.”

She told senators that she is “forever grateful” for Ginsburg’s trailblazing path as a woman on the court.

This didn’t impress Democrats, chief among them Biden’s running mate Senator Kamala Harris who said the court is “often the last refuge for equal justice” and Barrett’s nomination puts in jeopardy everything Ginsburg fought to protect.

Giving evidence from her office because of the pandemic, Harris said that not only health care but voting rights, workers’ rights, abortion rights and the very idea of justice are at stake.

The Affordable Care Act – opposed by Trump and set to be considered by the Supreme Court after the election – was a lightning rod for Democrats during the week. 

One after another, they sought to tie her nomination to the upcoming court case.

“Health care coverage for millions of Americans is at stake with this nomination,” said Senator Dianne Feinstein of California, the committee’s senior Democrat.

Republicans, however, moved to defend Barrett throughout the hearings, calling her a thoughtful judge with impeccable credentials.

Among Republicans, Senator Chuck Grassley dismissed warnings Barrett will undo the Obama-era healthcare law as “outrageous”.

Personal beliefs

Getting feisty at times in defending her record, Barrett steadfastly avoided expressing her legal views, saying she would not address theoretical issues, but only judge cases as they come, on their own merits. 

When asked by committee chairman – and Republican – Lindsay Graham if she would be able to shelve her personal beliefs to adhere to law.

“I can. I have done that,” she said. “I will do that still.”

This and other answers didn’t sate Democrats.

“There were a lot of questions that were in-bounds that she just refused to answer,” complained Senator Cory Booker.

She also refused to say if she would recuse herself if, in the days after joining the Supreme Court, she has to review any legal challenge on the results of the election.

Trump has said he wants her in place if the election results are fought up to the high court, as in 2000.

“I certainly hope that all members of the committee have more confidence in my integrity than to think that I would allow myself to be used as a pawn to decide the election for the American people,” she said.

Graham, meanwhile, praised her as a conservative woman of faith and the best possible nominee Trump could have chosen.

“I will do everything I can to make sure that you have a seat at the table. And that table is the Supreme Court,” Graham said.

Next Steps

Even Democrats admit there’s little chance of stopping Barrett being confirmed to the Supreme Court.

“This goose is cooked,” said Booker during the week.

Graham has said the committee would vote on Barrett’s confirmation on Thursday 22 October, and Senate Majority Leader Mitch McConnell said the full Senate would begin debate the following day, making likely her final approval days later.

This makes it likely she will be confirmed prior to the 3 November election – when as well as electing their President, Americans will also elect 35 people to the Senate. 

Although Democrats have made last-minute pitches to Republican colleagues to honour their promises of four years ago not to seat a justice close to a presidential election, this doesn’t appear to have swayed any of the senators – not yet, anyway.

And time is of the essence for Republicans. Any delay would risk them losing their majority in the Senate in next month’s elections, and not being able to confirm Barrett.

It now appears certain that Barrett will be on the Supreme Court by then.

Trump has expressed his wish for a judge that will vote to end the Affordable Care Act and solidify the conservative tilt on the Supreme Court.

His re-election may remain uncertain – or even unlikely if we’re to believe the recent polls – but he looks set to have achieved his aim when it comes the Supreme Court, at least.