Amy Coney Bar­rett Nom­i­nated by Trump for Supreme Court

MISHAWAKA-- As Trump at­tempts to push his nom­i­na­tion of Amy Coney Bar­rett through the Sen­ate as quickly as pos­si­ble to se­cure her con­fir­ma­tion, many De­moc­rats are fight­ing this move and call­ing its con­sti­tu­tion­al­ity into ques­tion by re­fer­ring to the events of 2016 when then-pres­i­dent Oba­ma’s nom­i­na­tion was blocked more than eight months be­fore the elec­tion. 

How­ever, As­sis­tant Pro­fes­sor of Crim­i­nal Jus­tice Tom LaFoun­tain, JD, said the Con­sti­tu­tion does­n’t play into this dis­cus­sion very much. 

“The Con­sti­tu­tion is quiet, re­ally, as to the pro­ce­dures,” LaFoun­tain said. “The only thing it says about the ap­point­ment of the Supreme Court Judge is that the Pres­i­dent will have the ad­vice and the con­sent of the sen­ate.” 

As­so­ci­ate Pro­fes­sor of His­tory John Haas, Ph.D., said that be­cause the Con­sti­tu­tion pro­vides very lit­tle de­tails about what the process should look like, Re­pub­li­cans have been us­ing this to their ad­van­tage. The pri­mary fac­tor comes down to who con­trols the Sen­ate; in 2016 then-pres­i­dent Obama, a De­mo­c­rat, faced a Re­pub­li­can Sen­ate; to­day, Pres­i­dent Trump, a Re­pub­li­can, is also fac­ing a Re­pub­li­can Sen­ate.  

“It’s per­fectly con­sti­tu­tional... every­body was in their rights,” Haas said. “And Pres­i­dent Trump is in his rights now... and if the Sen­ate says, ‘We don’t re­ally want to look at this per­son,’ that’s fine too.”  

LaFoun­tain said there are sev­eral rea­sons Re­pub­li­cans are push­ing to con­firm Bar­rett as quickly as pos­si­ble.  

“Po­lit­i­cally, the Re­pub­li­cans want to get this done quickly be­cause if they lose ei­ther the Sen­ate or the pres­i­dency, they’re go­ing to have a prob­lem as far as that’s con­cerned,” LaFoun­tain said. 

Haas said he be­lieves the Re­pub­li­cans are right in what they are do­ing be­cause pol­i­tics is a game of hard­ball and be­cause Supreme Court ap­point­ments are per­ceived as, and in many ways are, very im­por­tant.  

“We’re talk­ing about mo­men­tous de­ci­sions hav­ing to do with life and free­dom and the na­ture of Amer­i­can cul­ture, and this is go­ing to stretch on for decades,” Haas said. “I cer­tainly think that Re­pub­li­cans are think­ing sen­si­bly, and they are think­ing log­i­cally, and they are, all in all, do­ing what you would ex­pect a party to do in a sit­u­a­tion like this.” 

As to why the Sen­ate ob­jected so strongly to al­low­ing an Obama can­di­date to be ap­pointed in 2016, Haas said it prob­a­bly hinged partly upon the seat that was be­ing filled. 

“[Scalia] was kind of an iconic judge, for con­ser­v­a­tives in par­tic­u­lar,” Haas said. “The idea of an Obama re­place­ment tak­ing over the ‘Scalia seat’ was anath­ema, I think, to the Re­pub­li­cans in the Sen­ate.” 

LaFoun­tain said that some­thing sim­i­lar was prob­a­bly be­hind Trump’s rea­son­ing in his nom­i­na­tion of Amy Coney Bar­rett. 

“He’s re­plac­ing one woman with an­other woman,” LaFoun­tain said. “You’ll of­ten see that hap­pen, where you’ll have a po­si­tion like that where it’ll kind of be con­sid­ered the wom­an’s seat or the African Amer­i­can seat so that a lot of times they’ll put in an­other per­son of that gen­der, race, what­ever de­mo­graphic it is.” 

LaFoun­tain said that in 2016, when Trump re­leased a list of what he said would be his Supreme Court nom­i­nees, this prob­a­bly helped him at least a lit­tle in the elec­tion. 

“In 2016... Mr. Trump ac­tu­ally re­leased a list of what he said would be his Supreme Court nom­i­nees,” LaFoun­tain said. “That so­lid­i­fied his base... a lot of par­tic­u­larly con­ser­v­a­tive Chris­tians were kind of on the fence as far as Mr. Trump’s rep­u­ta­tion and some of his other short­com­ings.” 

LaFoun­tain said the cur­rent sit­u­a­tion could pro­duce sim­i­lar re­sults. 

“What could hap­pen here is the same kind of ef­fect,” LaFoun­tain said. “If he gets some­body in, then what could hap­pen is those peo­ple who may have been wa­ver­ing be­cause of his han­dling of cer­tain things over the past four years might be brought back into his camp.” 

Haas does not ex­pect the process to af­fect the elec­tion in the slight­est. 

“No­body has been won over to Pres­i­dent Trump, af­ter four years, just be­cause of Amy Coney Bar­rett,” Haas said. “They might feel bet­ter about it and be more grate­ful, but they’re al­ready grate­ful for Gor­such and Ka­vanaugh.” 

LaFoun­tain said that most of the crit­i­cisms Bar­rett will likely face in the days ahead will re­sem­ble those she faced when she be­came a fed­eral judge. 

“There was a lot of talk about her con­ser­v­a­tive views and there was a lot of talk about her re­li­gious views, and whether those would over­ride prece­dent and other pro­ce­dures the Supreme Court uses to de­cide is­sues,” LaFoun­tain said.  

Haas said that Trump would have looked at a list pro­vided by the Fed­er­al­ist So­ci­ety of peo­ple who would be el­i­gi­ble for the po­si­tion and who strongly align with his par­ty’s views and then se­lected a nom­i­nee from that list. 

“My guess is that he is most con­cerned to have an ap­pointed jus­tice who will re­ally ex­cite his base,” Haas said. “It won’t ex­pand it, but it will ex­cite it.” 

Haas said that Trump also likely wanted to choose some­one who would up­set lib­er­als, be­cause when the Re­pub­li­can party per­ceives that one of their mem­bers is be­ing un­fairly at­tacked it so­lid­i­fies their stance as a Re­pub­li­can and their sup­port of other Re­pub­li­cans; Bar­rett al­ready re­ceived strong crit­i­cism for her ded­i­cated Catholi­cism when she was be­ing ap­pointed to the fed­eral bench. 

“My guess is that Pres­i­dent Trump... wanted to pick some­one who would re­ally push the but­tons of lib­er­als, and Amy Coney Bar­rett does,” Haas said. “We al­ready saw her when she was be­ing grilled for her ap­point­ment to the fed­eral bench... at one point, [Sen­a­tor Di­anne Fe­in­stein] said, ‘The dogma lives loudly in you, and that’s con­cern­ing.’” 

Both Haas and LaFoun­tain said they be­lieve Bar­rett will be con­firmed. 

“It’s a lock,” LaFoun­tain said. “There’s al­ready is no ques­tion that the Sen­ate will go along, and there’s lit­tle or noth­ing pro­ce­du­rally that the De­moc­rats can do to pre­vent it.” 

Haas said he would en­cour­age peo­ple to fol­low the Supreme Court and to read Supreme Court de­ci­sions, not only to stay up­dated on cur­rent na­tional is­sues, but also to see if the jus­tices they like make de­ci­sions they ap­prove of. Be­cause Supreme Court ap­point­ments are for life and the jus­tices do not have to be con­cerned with pleas­ing a vot­ing pub­lic, there is not as much pres­sure to vote ac­cord­ing to their par­ty’s stance if they dis­agree with it.  

“They tend to get quite in­de­pen­dent, as most peo­ple would when they’re not ac­count­able to any­one,” Haas said. “I don’t mean that they have done any­thing wrong, I just mean that they are fully free to fol­low their own rea­son­ing pow­ers wher­ever those rea­son­ing pow­ers seem to lead them.”  

LaFoun­tain pointed out that Re­pub­li­cans may be us­ing their po­lit­i­cal power to their ad­van­tage right now but that they should be pre­pared to have the ta­bles turned. 

“Re­pub­li­cans need to re­mem­ber that they may find them­selves in this same sit­u­a­tion, but on the other side,” LaFoun­tain said. “It’s a reap what you sow kind of thing.” 

The Sen­ate Ju­di­ciary Com­mit­tee is sched­uled to be­gin Bar­ret­t’s hear­ings on Oct. 12.