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.