To read some of the accounts of Amy Coney Barrett’s confirmation process would be to believe history had been turned on its head because her nomination, hearing and advancement from the Senate Judiciary Committee happened over the course of a few weeks.
The better question might be why this is not the routine of judicial confirmation for plainly qualified nominees who have already been thoroughly vetted (thoroughly vetted in the present age meaning scraped across the hot coals of Washington’s partisan furnace).
One might well disagree with Barrett’s originalist philosophy. One might be bothered by the speeches she has given to the conservative Federalist Society (something judges and justices of every stripe have done). One might even dislike that she frequently taught a seminar in her area of expertise to law students who openly practice and proclaim their Christian faith.
We don’t find any of those matters concerning. But even if we did, it would be important to acknowledge they don’t diminish her obvious qualification to sit on the Supreme Court.
We had hoped that when President Barack Obama nominated Merrick Garland, he, too, would get a fair hearing and a vote. In a more functional political world, Garland would be on the Supreme Court today, because he was clearly qualified for the job.
The farcical theater around judicial appointments today is a terrible political problem, and it is one created by a political system that more often than not refuses to do its job.
Congress is all but incapable of even passing a budget — never mind one that is balanced. The body is wholly incapable of facing harder legislative priorities over questions of great importance to the American people.
So the Supreme Court becomes the battlefield. And judges are selected by both sides for political rather than legal ends. Who can be surprised that we now face a question of court-packing, something that would represent a terrible new chapter in the politicization of the courts. And it would be equally destructive if court packing was a step Republicans took as a way to recast the court. At some point, we need to preserve institutions and allow them to function as designed.
Barrett deserved to be confirmed because she is the president’s nominee and she is qualified. Elections have consequences, and subverting nominees through procedure and for nakedly political reasons is cheap whoever does it.
Some will celebrate her confirmation as a political victory. They should be careful.
When it is up to the courts to solve a democracy’s political problems, that democracy is in a bad way.