Ben Sasse is worried. With 22 days to go before the election, the Nebraska senator and his colleagues are about to begin a showdown over the Supreme Court nomination of Amy Coney Barrett, which he likened to the deadly 19th-century feuds between the Hatfields and the McCoys. Barrett’s confirmation hearings, which begin today, will likely become a spectacle of the intense partisanship—Sasse described it as “WWE slap-down tribalism”—that now characterizes all Supreme Court nomination fights. Perhaps most troubling, Barrett’s potential ascension is coming at a time of crisis for American democratic norms. President Donald Trump has consistently cast doubt on the integrity of November’s election by spreading conspiracy theories about mail-in ballots, suggesting that the election should be postponed, and refusing to say that he’ll agree to a peaceful transfer of power if he loses. “All of those are mistakes by the president,” Sasse told me. “Right now, I think there are a whole bunch of arsonists in Washington, D.C., who don’t think about the public trust.”
Among conservatives in Washington, Barrett’s Supreme Court nomination is almost universally viewed as a win. In their eyes, she’s everything conservatives could want out of a replacement for Ruth Bader Ginsburg: a respected legal scholar, a protégée of the late Justice Antonin Scalia, and a longtime student of judicial precedent who, they hope, might one day write the decision overturning Roe v. Wade. And yet, for all of the good these conservatives believe Barrett will do for America, at least some of them acknowledge that they paid a price for her nomination: Her name will always be tied to Trump’s, and to the erosion of democratic norms he has accelerated. For now, the Republican Party has largely accepted this trade-off. Although Sasse has some history of making skeptical comments about Trump, sentiments like his are rarely expressed on the record by Senate Republicans. But when Trump is gone, whether in four months or four years, conservatives will be left to wrestle with deep disagreements about how the movement got here, and what comes next. For those who loathe the fruit of the Trump era, Barrett makes some of the damage worth it. “The cake is already baked,” one senior Hill staffer told me. “At least you get a judge out of it.”
When Trump promised in 2016 to pick judges who uphold the “constitutional principles I value,” many conservative intellectuals simply didn’t believe him. “Lots of us did not think we could take him at his word on that,” Robert George, a professor at Princeton, told me. “He was not a man known for his fidelity.” Four years, more than 200 judges, and maybe soon-to-be three Supreme Court seats later, they’ve been proved wrong. “Perhaps what we failed to see was just how transactional the president is,” George said. Trump saw making judicial appointments in return for conservative support as a beneficial deal, and he’s kept his end of the bargain. “When I say that, my Trump-friendly friends, my pro-Trump friends, will say I’m being mean-spirited and refusing to confess error—that, really, these judges reflect Trump’s true convictions about the Constitution and the courts,” George said. “I wish I could believe that. And I don’t mean to be grudging, I don’t. But I also honestly don’t believe it.”
Barrett’s nomination is a microcosm of a great Trump-era dilemma: Even conservatives who Trump’s character are ecstatic about some of his victories. Trump’s character hasn’t changed since 2016—what George and the Catholic writer George Weigel decried at the time as “his appeals to racial and ethnic fears”; “his vulgarity, oafishness, shocking ignorance”; and his “demagoguery.” What has changed are some conservatives’ calculations about how much that matters.
The story conservative-movement intellectuals tell about the breakdown of democratic norms starts long before Trump became a serious figure in American politics. In their version of events, presidents have spent decades usurping power, bureaucrats have been given too much latitude to make policy, and courts have taken it upon themselves to unilaterally decide America’s most hotly contested issues. Many conservatives point to Roe v. Wade as the original antidemocratic sin, arguing that the Court stepped beyond its constitutional authority in forbidding states from regulating or banning abortion in the earliest stages of pregnancy. (Even some liberals are sympathetic to the idea that Roe is an example of judicial overreach. “Doctrinal limbs too swiftly shaped may prove unstable,” the late Ginsburg once said of Roe.) Most liberal critics don’t “quite grasp how the Court’s history of legislating has eroded the Court’s legitimacy while weakening the sinews of American democracy,” Weigel told me in an email.
Conservatives found the Court’s capacious decision making even more outrageous during the Obama years, when they believed the president wielded executive power to aggressively advance a progressive vision of America. Many in the conservative legal world despised Barack Obama’s use of executive orders, agency rulings, and memorandums to extend nondiscrimination protections to LGBTQ Americans, to defer the prosecution and deportation of immigrants illegally brought to the U.S. as children, and to discourage states from attempting to defund Planned Parenthood. The politician who famously said “there is not a liberal America and a conservative America—there is the United States of America” made full use of his partisan powers once he won the White House, conservatives believed.
This brought new urgency to conservatives’ massive project to remake the courts, which some conservatives cast as an effort to steady the wobbling ship of American democracy. “The conservative legal movement is pushing to appoint judges that will scale down the footprint of judicial decision making in our politics,” Adam White, an assistant professor at the Antonin Scalia Law School at George Mason University, told me. To conservatives, Barrett embodies this principle. Her scholarship specifically focused on how judges should separate their politics from their jurisprudence, and when they should overturn precedents. At her confirmation hearing for the Seventh Circuit Court of Appeals, she assured senators that it’s inappropriate for a judge to impose their own views when making a decision, and that she would follow the law where it leads her. “She’s the ideal justice for the moment,” White said.
Trump complicated the story conservatives tell about themselves. He quickly perceived that Republican voters care less about philosophical concepts like originalism, the method many conservatives favor for interpreting the Constitution, than getting the Supreme Court to protect a checklist of right-wing views: “We need NEW JUSTICES of the Supreme Court,” Trump tweeted this summer. “If the Radical Left Democrats assume power, your Second Amendment, Right to Life, Secure Borders, and … Religious Liberty, among many other things, are OVER and GONE!” Some senators have openly adopted the president’s logic: Josh Hawley, a rising Republican star from Missouri, has said all Supreme Court nominees need to be on the record stating that Roe was wrongly decided. There’s evidence that ideology already shapes the way justices decide cases. Researchers have found that in 5–4 decisions, where each justice’s vote could change the outcome of a case, justices tend to side with their ideological wing of the Court. For conservatives who shy away from the open politicization of the Court, however, the suggestion that justices should privilege certain outcomes is wrong. “I like Josh Hawley personally, but I think his litmus test is a very bad idea,” Sasse told me. “I think it’s the right acting like the left.”
Although some conservatives offer up philosophical arguments to explain their efforts to confirm like-minded justices, Trump himself seems to approach the courts as an exercise in accumulating power. When Scalia died, Republicans refused to hold hearings on Obama’s nominee, Merrick Garland, arguing that voters should get to pick the president who fills vacancies in an election year. With just a few weeks to go until November’s election, Republicans are now racing to confirm Barrett. “It is the height of cynicism,” Sarah Longwell, a Republican strategist and the publisher of the conservative website The Bulwark, told me. The move “just looks so transparently like, Hey, we’re about to lose the Senate majority, we’re about to lose the presidency, so we need to jam this thing through.”
For the handful of conservative Republican lawmakers who have been at least somewhat willing to criticize Trump’s harms to democratic norms, Barrett’s nomination is a relief—a welcome return to rhetorical home turf, where they can talk about constitutional principles and the rule of law. Barrett “doesn’t think you slop applesauce on tablets and then call it law because it came from a judge,” Sasse said, cheekily citing Scalia’s famous dissent in the 2015 Supreme Court decision upholding Obamacare, in which he called the majority’s reasoning “pure applesauce.” But the rule of conservative politics in Washington has become clear: Those who want their lofty principles need to work through Trump’s patronage. People working on the nomination indicated to me that they believe Democrats have turned judicial nominations into an all-out war, with their attempts to sink Brett Kavanaugh and question Barrett’s faith. Their message to Democrats sounded distinctly Trumpian, albeit with a biblical flair: Live by the sword; die by the sword.
Some conservatives worry that their movement will be hurt by the legacy of this era, especially when it comes to the battles over the courts. “We are in a race to the constitutional bottom,” Longwell said. If Republicans successfully confirm Barrett to the Supreme Court but lose badly in November, Democrats might attempt to pack the court with more justices who are favorable to their cause, which would invite further retaliation from conservatives in the future. Forget lofty principles—we will “find ourselves in an environment where it is raw political power all the way down. There are no more attempts at compromise. There are no more attempts at finding common ground,” Longwell said. Others believe Supreme Court victories for the anti-abortion-rights movement could be Pyrrhic, prompting a cultural backlash that will tilt public opinion in favor of expanded abortion rights. And because of the circumstances of Barrett’s nomination, her decisions might always be viewed through a partisan lens.
For now, conservatives are trying to relish the victory at hand. “I don’t spend a lot of my time on Donald Trump’s narcissistic tweeting,” Sasse said. “He is who he is, and everybody knows it.”
There’s a comic that’s become popular in the Trump era: A dog in a bowler cap sits at a table with a mug of coffee, assuring everyone, “This is fine,” while flames lick the walls of the room around him. For conservatives who are skeptical of Trump, Barrett’s nomination is a little like that: They see her as a last chance to shore up the constitutional principles they hold dear while the house of American democracy burns down around them.
Sasse didn’t know the meme—he’s semiretired from Twitter, where he used to maintain a prodigious presence. But he got the concept. Most of Sasse’s first Senate term has been dominated by the Trump era. He’s about to win his next six years in office, and he’d like to spend it governing—preparing America to compete with China, rebuilding public trust in institutions, and, of course, confirming more conservatives to the federal bench. But, he said, these efforts at governing keep getting derailed. “We’re constantly doing your dog-with-coffee-mug-burning-down-house stuff.”
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