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Barrett is ascending to the high court just eight days before an election that Republicans apparently expect to lose. The stakes couldn’t be higher: In her first few weeks on the job, Barrett is slated to hear a case that could end up overturning the Affordable Care Act, along with a case about whether the government can require a Catholic foster-care agency to place children with same-sex couples. At 48, Barrett will be the youngest justice on the bench, cementing a 6–3 conservative majority. Over the past 50 years, three-quarters of Supreme Court justices were named by Republican presidents, and her appointment will further consolidate the conservative influence on America’s judiciary.
Democrats have spent the past month arguing that Barrett’s appointment is “the most rushed, the most partisan, and the least legitimate nomination to the Supreme Court in our nation’s history,” as Senate Minority Leader Chuck Schumer recently said at a press conference, in large part because it’s happening right before the election. “I don’t even come close to buying that,” Gregg Nunziata, a former chief nominations counsel to the Senate Judiciary Committee, told me. Especially after Justice Brett Kavanaugh’s contentious confirmation battle, Republicans believe Democrats have fully embraced norm-breaking in order to win, including by throwing out Senate rules to confirm Democratic nominees and by using procedural maneuvers to tank a Republican nominee. “Why should our guys play by some enhanced rules of etiquette?” Nunziata said. Republicans have followed suit: Senator Lindsey Graham of South Carolina reversed his position on confirming Supreme Court nominees in an election year after Justice Ruth Bader Ginsburg’s death. Besides, the Democrats never had the votes to stop Barrett from getting through. “The fits of pique that we witnessed from Democrats and progressive activists around this event [have] been uniquely impotent,” Rothman said.
Read: How conservatives really feel about Amy Coney Barrett
Republicans claim that Barrett’s confirmation is not about securing a justice who will be friendly to Republican causes: Conservatives look for justices “who have a fealty to the Constitution and not to particular policy goals,” Duffield said. But even among themselves, conservatives disagree about the extent to which Republicans look to the Supreme Court as a firewall for their agenda. Conservative advocacy groups spent millions on swing-state ads meant to pressure Republican senators, points out James Wallner, a Republican former senior Senate staffer and current fellow at the R Street Institute. “It’s nonsense to suggest it’s not supposed to be political,” he told me.
Even after four years of controlling the Senate and the White House, along with two years of holding the House of Representatives, “Republicans don’t have a lot to show for [themselves],” Wallner said. “Confirming Barrett right before Election Day is a continuation of a trend: We have to do something.” In the absence of major legislative achievements, he said, the judiciary has become an arena where Republicans, the party of small government, look to entrench their power. The party’s instinct “is not to check the Court. It’s to control the Court,” Wallner said.