Judiciary Approves Barrett Despite Democratic Boycott

Chuck Schumer and company sent a signal to their base against a fait accompli.

The Democratic members of the Senate Judiciary Committee boycotted yesterday’s vote on Supreme Court nominee Amy Comey Barrett because, well, because.

“Throughout the hearings last week, committee Democrats demonstrated the damage a Justice Barrett would do – to health care, reproductive freedoms, the ability to vote, and other core rights that Americans cherish,” Senate Minority Leader Chuck Schumer and Democrats on the Senate Judiciary Committee said in a statement announcing their boycott. “We will not grant this process any further legitimacy by participating in a committee markup of this nomination just twelve days before the culmination of an election that is already underway.”

That she’s a conservative doesn’t make her illegitimate. Neither does the timing: there’s a vacancy, the President has nominated a qualified judge, and his party has the votes to confirm her. (The juxtaposition with GOP treatment of Obama nominee Merrick Garland in 2016 is obviously a different matter; but that’s not the point Schumer made.)

Further, not only did these Democrats participate in the hearings but ranking member Dianne Feinstein praised how they were carried out.

“This has been one of the best set of hearings that I’ve participated in,” said Sen. Dianne Feinstein (D-Calif.). “It leaves one with a lot of hopes, a lot of questions and even some ideas perhaps of good bipartisan legislation we can put together.”

If that wasn’t enough to anger Democrats — who have spent this week trying to paint Barrett’s nomination process as a sham — Feinstein also thanked the committee’s chair, Sen. Lindsey O. Graham (R-S.C.), and then walked across the room to wrap him in a hug.

But Feinstein, too, participated in the boycott.

Regardless, the Republicans who showed up had the votes, unanimously voting to pass her on to the full Senate.

All 12 Republicans on the committee voted in favor of Barrett, a conservative judge. No-show Democrats left behind posters at their desks of Americans they say have benefited from the Affordable Care Act, now being challenged at the high court. Senators plan to convene a rare weekend session before a final confirmation vote expected Monday.

Still, conservative legal analysis Henry Olsen gave the Democrats grudging respect for the maneuver (“Democrats’ boycott of the Barrett vote was egregious. It was also their best move.“):

Democratic senators faced a difficult choice as the confirmation hearings commenced. On the one hand, they knew that Democratic voters — especially core party activists and progressives — were furious at President Trump’s appointment and scared about a future court in which conservative justices hold a 6-to-3 majority. On the other hand, they knew that a protracted and highly public effort to stop Barrett’s nomination was likely futile and could backfire by scaring away moderate voters who intended to back Democrats in November’s election.

The decision to protest the legitimacy of the appointment and then abstain is a political masterstroke. It satisfies the base by showing that Democrats will not assist in something they contend is a charade. It lays the blame for the Barrett appointment squarely on Trump and Senate Majority Leader Mitch McConnell (R-Ky.), which Democratic partisans were already inclined to believe. But it also doesn’t rise to the level of activity that will gain the attention of moderates who do not prioritize court appointments in their voting. The daily fixation on Brett M. Kavanaugh’s fitness was the defining feature of his nomination, and it arguably hurt Democrats in the run-up to the 2018 election. Abstention and relative public quiet about Barrett’s nomination avoid that potentially calamitous result for this year’s races.

Still, he contends, Democrats are actually losing the larger argument:

Polls show Americans aren’t buying the Democrats’ arguments. Both a Politico-Morning Consult poll and a Gallup poll found a majority of Americans support Barrett’s confirmation. The Politico poll and another from the New York Times and Siena College also found that nearly 50 percent believe it’s proper that she be assessed now rather than wait until after the elections, as Democrats have argued. Those who say the hearings should wait until after the election, according to the Politico poll, are strongly tilted toward the party’s base: liberals, strong opponents of Trump and Democrats. The Times-Siena poll also found it was overwhelmingly Democratic voters who supported delaying the confirmation. Independent voters backed immediate action on Barrett’s nomination by a 49-40 margin, even as they supported Joe Biden by a 46-37 gap.

That a majority approves of Barrett’s nomination and confirmation despite Trump having been underwater in his approval ratings his entire tenure—and losing badly to Biden in the polls—is interesting, indeed. It’s actually an encouraging sign of a public being able to distinguish that which is normal—elected officials carrying out their duties as one would expect—from that which is not—pretty much everything else Trump has done while in office.

FILED UNDER: Congress, Law and the Courts, Public Opinion Polls, Supreme Court, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. OzarkHillbilly says:

    It’s actually an encouraging sign of a public being able to distinguish that which is normal—elected officials carrying out their duties as one would expect—from that which is not—pretty much everything else Trump has done while in office.

    That’s funny, because I think it’s a sign that they have no idea who and what ACB is. We’re all gonna find out real soon tho.

    15
  2. James Joyner says:

    @OzarkHillbilly: It’s hard to get inside the heads of ordinary Americans, who pay much less attention to these things than we do. But, even after the Garland outrage, Americans overwhelmingly thought Neil Gorsuch should be confirmed to the open seat. Conversely, while initial support for Brett Kavanaugh was high, it cratered after the rape allegations. These are highly newsworthy events and I think the country pays at least modest attention—although almost certainly more when there’s a sex scandal.

    3
  3. OzarkHillbilly says:

    @James Joyner: My comment was directed more towards her non testimony than it was towards what avg Americans are thinking. I gave up trying to figure that out a long time ago.

    1
  4. Sleeping Dog says:

    Hard to make much of one poll that shows 51% support for her confirmation, considering the margin of error might mean that in reality 53% are opposed.

    Dems should also abstain from the final vote. Barrett, Trump and McConnell, not that he’d care, will carry that embarrassment through their lives. Every biographical article about her will mention it by the 3rd paragraph.

    4
  5. James Joyner says:

    @OzarkHillbilly: Yes, that’s fair. But it’s really been the trend for the last 35 years or more. After Bork, nobody really articulated anything more than an anodyne vision of their jurisprudence.

    @Sleeping Dog: I honestly don’t see why anyone would be embarrassed by a naked display of partisanship. She was, after all, overwhelmingly confirmed to the Court of Appeals just three years ago. Voting No would actually be more powerful than abstaining.

    3
  6. Kathy says:

    And then the zebra was consumed by the lion pride, despite strong opposition from the zebra caucus.

    15
  7. OzarkHillbilly says:

    @James Joyner: I know. I’m still tired of it.

  8. “This has been one of the best set of hearings that I’ve participated in,” said Sen. Dianne Feinstein (D-Calif.).

    Setting aside the candidate and the current context, that the Senator thinks these were great hearings underscore the poverty of this process, which is a decades-long display of performance art that tells us in the public very little and that has practically no bearing on how the Senate votes.

    And I say that honestly untainted by my preferences. The Republicans have the votes, and that is what matters in terms of this process going forward and no amount of wish stops it.

    Of course, I am firmly of the opinion that that means if the Democrats have the votes to expand or otherwise reform the Court, that that is fair (and yes, legitimate) as well.

    13
  9. Kathy says:

    I’m thinking perhaps hearings for Supreme Court nominees ought to allow and encourage regular citizens to question the nominees.

    1
  10. Han says:

    That a majority approves of Barrett’s nomination and confirmation despite Trump having been underwater in his approval ratings his entire tenure—and losing badly to Biden in the polls—is interesting, indeed.

    Interesting, considering just a few short weeks ago a majority thought the nomination should go to the winner of the election. https://www.politico.com/news/2020/09/21/poll-winner-appoint-supreme-court-justice-419523

    1
  11. Pylon says:

    A couple things:

    First, Coney-Barrett is qualified only in the barest sense. Frankly, the word has little meaning technically, since anyone who Trump nominates is “qualified”. In real life, she’s been a career academic at a middle of the road law school, with almost no practical experience and precious little judicial experience (and what’s there is troubling”. She’s got a far bigger activist background than legal background.

    Second, I saw no mention of what the boycott meant technically. Under the Judiciary Committee quorum rules, the vote was improper. They needed some Dems attending to proceed. Graham as chairman decided to ignore that rule.

    “ Seven Members of the Committee, actually present, shall constitute a quorum for the purpose of discussing business. Nine Members of the Committee, including at least two Members of the minority, shall constitute a quorum for the purpose of transacting business.”

    18
  12. An Interested Party says:

    I honestly don’t see why anyone would be embarrassed by a naked display of partisanship.

    Under the Judiciary Committee quorum rules, the vote was improper. They needed some Dems attending to proceed. Graham as chairman decided to ignore that rule.

    And here we see an illustration as to why the Democrats would be perfectly justified to add seats to SCOTUS, despite the hysterics coming from the right…Republicans have shown that they have no problem breaking norms to gain power…why shouldn’t the Democrats play by the same rules…

    12
  13. dmichael says:

    Could someone please explain to Senator DiFi that for a mask to be effective, it needs to cover her nose and mouth. Schumer has the excuse that he was speaking.

  14. Scott F. says:

    @Steven L. Taylor:

    Of course, I am firmly of the opinion that that means if the Democrats have the votes to expand or otherwise reform the Court, that that is fair (and yes, legitimate) as well.

    As James notes, polling may indicate that people can distinguish what is normal, but our recent national experience proves that doesn’t really matter beyond some temporal dissatisfaction revealed in overnight polls.

    Republicans, since at least Obama’s second term, have demonstrated that adhering to norms is a sucker’s game. By the new rules, laws are for all practical purposes an inconvenience at most when you have partisan and supplicating legislative and judicial branches that will forgive and cover for lawlessness. No level of egregious behavior from leaders can weaken the bonds of the tribe and it hardly matters to the “ordinary Americans” who aren’t paying attention as long as they have bread (cheap gas and food) and circuses (sports and bing TV). All this recent destructive history and yet, the worse case scenario for the GOP is a modest tilt in the partisan balance of government.

    It’s only about Power now. And if the Democrats get Power in this cycle, they should give it to the opposition good and hard. The Republicans have shown us all that the price to be paid for such power-mongering is pocket change.

    4
  15. Scott F. says:

    @James Joyner:

    Voting No would actually be more powerful than abstaining.

    I don’t think that is the case. ‘No’ votes against a judicial nominee are the norm and therefore not very noteworthy. Calling attention to the juxtaposition of Merrick Garland and Amy Coney Barrett through abstaining is the right thing to do. I would love to see massive abstentions on the full Senate vote. It’s a fait accompli so lean into that. Let the history books show that ACB didn’t win on a party line vote as usual, but that she won with an unprecedented unanimous vote where no Democrat deigned to participate.

    7
  16. charon says:
  17. Jim Brown 32 says:

    This is the type of stunt that make regular people facepalm at liberals. Take that “L” on the chin like a real man (or woman). Suck it down–then come back with a hard counter-punch to the temple.

    I’ve always said that liberals have a real image problem with Men in general–granted, they don’t have to go full Sean Connery–but damn–the hand wringing & pearl clutch needs to go.

    I would look McConnell right in the face and say “do what you need to do–” knowing full well (as he would know)–that my leg is going to go knee deep up their asses over these court games and send their little engineering experiment completely up in smoke as soon as the opportunity presents.

    Channel Obama–“Proceed Counselor….”

    7
  18. CSK says:

    @charon:
    Was he propping himself up? Or do his shoe lifts give that weird forward tilt?

  19. charon says:

    @CSK:

    I put that in the wrong thread – oh well.

    I think it’s a neurological symptom, if so there are various possibilities.

  20. @Scott F.:

    It’s only about Power now.

    Let me stress, romantic views of the past aside, I think it always has been about power. A lot of what seems like principled compromise was actually born out of the power arrangements of the moment.

    While I can certainly agree that some people (and therefore some politicians) are more principled than others, on balance politics is always about power.

    3
  21. @dmichael: In fairness, given the way she is holding her mask and looking at it, she is either about to put it back on after having spoken or just took it off in anticipation of speaking.

  22. mattbernius says:

    And we have a preview of what will most likely be one of ACB’s first cases:

    BREAKING: Pennsylvania Supreme Court rules that election officials are PROHIBITED from rejecting mail-in ballots based on signature comparison. Nor may a party "challenge based on signature analysis and comparisons."https://t.co/pBa0vyA9h3— Marc E. Elias (@marceelias) October 23, 2020

    Prediction: Unless there is an overwhelming lead during in-person voting, PA 2020 is going to end up the new FL 2000.

  23. EddieInCA says:

    @James Joyner:

    I honestly don’t see why anyone would be embarrassed by a naked display of partisanship.

    But you’re outraged that the Dems would use a naked display of partisianship by adding seats?

    You’re not being intellectual honest, Dr. Joyner.

    Either a party is correct in using naked partisianship or their not. The rules can’t keep changing to benefit Republicans, a principle to which you seemingly adhere.

    13
  24. wr says:

    @OzarkHillbilly: ” towards what avg Americans are thinking.”

    Assumes facts not in evidence.

    2
  25. My beef is not really with Amy Coney Barrett. My beef is with Mitch McConnell and Lindsay Graham for not having a vote on Merrick Garland, and saying all kinds of things about what they would do if the shoe were on the other foot that turned out to be empty promises.

    And this is why a boycott of Barrett is appropriate. They said they wouldn’t have a vote, so we’re not going to vote.

    7
  26. @mattbernius: IANAL, but my understanding is that, as it stands now, the Federal Courts have never really superseded state courts on matters of voting rights. Which is one of the things that made Bush v. Gore such a poorly-founded decision.

    If this court should decide to reverse that situation, I think that there will come a day when, for instance, there isn’t a conservative majority, and a bunch of voting standards will get established that R’s won’t like. The shoe is inevitably on the other foot.

    Twenty years ago, Karl Rove often used the phrase “permanent Republican majority”. I wonder if that wasn’t meant to address this as a “Don’t worry, we can break norms and it will never come back to haunt us, because we will always be the ones running the country”.

    Of course, once again, that’s “Republicans don’t believe in democracy”.

    4
  27. Northerner says:

    @Steven L. Taylor:

    How hard would it be to expand your supreme court once to balance it against the recent Republican craziness, and then make a constitutional amendment to keep it from happening every time there’s a change of gov’t? Because it looks like that’s what you’re heading for — every time a president is elected with a majority in the senate, they’ll just increase the size of the court. Not only to get the interpretations they want, but it’d be a nice reward for political allies (a lifelong seat on the court), in much the way rulers used to reward people with noble titles. It’d be handy to amend the constitution to avoid that sink hole.

    2
  28. Teve says:

    @Northerner:

    How hard would it be to expand your supreme court once to balance it against the recent Republican craziness, and then make a constitutional amendment to keep it from happening every time there’s a change of gov’t?

    Virtually impossible.

    2
  29. Just nutha ignint cracker says:

    @EddieInCA: In the dark night of his soul, Dr. Joyner is a Republican. Full stop. Of course the rules can keep changing to benefit the Republicans. He’ll certainly regret that they do, but it’s not a problem in his world view. It’s the right outcome.

    5
  30. Gustopher says:

    The only effective thing the Democrats could have done would be to try to blow up the entire institution of the Senate with delays — start tossing articles of impeachment over the fence, deny unanimous consent on every procedural motion and request roll call votes, etc.

    I don’t think it’s worth the backlash since it would only delay, and I have no doubt that a lame duck Republican senate would vote to confirm anyway, so it would be all cost and no benefit.

    2
  31. Gustopher says:

    @Steven L. Taylor:

    Setting aside the candidate and the current context, that the Senator thinks these were great hearings underscore the poverty of this process, which is a decades-long display of performance art that tells us in the public very little and that has practically no bearing on how the Senate votes.

    Poverty of the process or the poverty of the Senator.

    She values comity over substance, apparently. Barrett did not provide substantive answers to anything, and I don’t think anyone really attempted to demonstrate that someone with three years experience as a judge doesn’t belong on the court. I tuned out the majority of the hearings though, since they were just a pointless performance, so I might be mistaken on that last part.

    Certainly none of the clips on twitter had anyone asking “In your three years of judging, can you show us some examples where your personal views and your legal interpretation differ? If not, why should we assume that you have the objectivity required for the Supreme Court — you’re just not ready.”

    2
  32. Gustopher says:

    @Northerner:

    How hard would it be to expand your supreme court once to balance it against the recent Republican craziness, and then make a constitutional amendment to keep it from happening every time there’s a change of gov’t? Because it looks like that’s what you’re heading for — every time a president is elected with a majority in the senate, they’ll just increase the size of the court.

    The only way to get a bipartisan consensus that would be needed to make court reform of any kind a reality is to make the Republicans hurt.

    So, that would be very hard, but be theoretically doable. No other path to court reform would be doable.

    2
  33. Northerner says:

    @Teve:

    Its hard not to think you’re basically screwed no matter what you do if you can’t amend your constitution. The Republicans seem to have set the standard that if its strictly legal then it should be done, whatever precedent or morals might say. Presumably that means they’d have little if any trouble with stacking the courts that way themselves (or further stacking them as convenient), given that it seems to be completely legal to to so. So the Democrats more or less have to do so if they get the next turn at the bat. Similarly, the Republicans will more or less have to do the same the next time they get in power after that. That’s the road to becoming a banana republic (a nuclear one),

    I suppose if there were enough reasonable people to get the amendment you wouldn’t need it in the first place (ie the Republicans would have been consistent about end of term appointments). Any chance of putting your nukes in long term storage for the next couple of generations until this insanity works it way through the system?

    1
  34. Gustopher says:

    @Northerner:

    Any chance of putting your nukes in long term storage for the next couple of generations until this insanity works it way through the system?

    Why do you assume that this insanity will work it’s way through the system? And why do you assume Canada won’t be next? You kind of lucked out with Rob Ford dying before he became a fixture, but there are surely others.

  35. Northerner says:

    @Gustopher:

    I suppose I’m an optimist? Beyond that, I expect the insanity will work its way through because that’s what’s always happened in the past around the world. Might take a few generations, changes of gov’t or countries, but things (so far) have always righted themselves. Or maybe humanity will wipe itself out and some other species will take over (cockroaches and Keith Richards?) In the big picture things move on eventually.

    In terms of Canada, even the most right wing leaders like Stephen Harper or Doug Ford are still moderate by what most Canadians call important standards (they want to keep public health, they won’t even talk about making abortions illegal, they accept gay marriages, they don’t want to invade other countries, they want to keep our public safety net).

    Not that Canada doesn’t have severe problems. There’s racism, the main target in Canada being the indigenous peoples. There’s an increasing gap between rich and poor, though public health care and social services alleviate that somewhat, and almost no one in power is talking about getting rid of either of those. There’s sexism, ableism, issues with mental illness, and now with Covid-19. Climate change isn’t taken seriously (in terms of action despite a lot of talk on it by all parties), neither are problems with environmental toxins or plastics or waste in general.

    But so far at least, there’s been very little interest in putting into office extreme partisans (not that some haven’t been running, they just haven’t gotten too far because they don’t get the votes), and I’m hopeful it’ll stay that way. Our supreme court in particular is so unpolitical that more Canadians can name an American supreme court member than can name one of ours (most Canadians couldn’t name a single one I suspect).

    The thing is, Canada is a very minor country. If we go nuts it won’t affect you or much of anyone else in the world. America is a super power in every regard. Your going nuts affects everyone. Its why someone like me spends at least a bit of time trying to follow your politics, whereas my equivalent in America wouldn’t spend any time following Canada’s politics.

    2
  36. Scott F. says:

    @Steven L. Taylor:
    Perhaps my use of Power with a capital P is too coarse for my intended message.

    I grant that politics has always been about having the power to make policy that supports one’s worldview. But the approach demonstrated by the GOP over the last 5 or 6 years – the flouting of norms and decorum, the enabling of criminality, the blatant service of the base & donors to the exclusion of all others – is different in degree and kind. If it weren’t, the editors of this blog wouldn’t be disavowing the Party they once called home. This is “Us” lording it over “Them” because they can.

    And among the reasons that they can is because the minority rule construction you’ve written of at length removes consequence since the worst possible outcome of blatant political malfeasance is an approximately 53%-47% split of the legislature and tenured control of the judiciary. And another reason is that Republicans have learned that Democrats haven’t historically had the appetite for turning GOP bad behavior back on them when given the chance.

    The minority rules construction will be extremely difficult to change. The deference to IOKIYAR rules can and must be dispelled with immediately.

    1
  37. An Interested Party says:

    He’ll certainly regret that they do, but it’s not a problem in his world view. It’s the right outcome.

    Oh, in other words, he thinks just like Susan Collins…

    The only way to get a bipartisan consensus that would be needed to make court reform of any kind a reality is to make the Republicans hurt.

    One of the best reasons to pack the court…Republican’s are already screaming bloody murder over the proposal to do that…

    1
  38. @Northerner:

    How hard would it be to expand your supreme court once to balance it against the recent Republican craziness,

    Theoretically, a 50 seat majority plus the presidency (and therefore the vice presidency to break a tie) in Democratic hands. (Although the degree to which the party is unified on this is a different issue.

    and then make a constitutional amendment to keep it from happening every time there’s a change of gov’t?

    Practically impossible.

    2
  39. keef says:

    @Steven L. Taylor:

    “romantic views”

    That’s correct. There is nothing wrong with the nominee or the process, leftist whining notwithstanding. That whining is somewhat kindergartenish. Similarly, the Dems would do the exact same thing if the had the White House and Senate, and Republican whining would be kindergartenish.

    The points are: the candidate it deserved, the process is OK, and elections matter. If one is unhappy, go out and convince the hearts and minds of the electorate and win elections.

    Changing the rules is of a different nature. Ginsburg said so herself.

  40. gVOR08 says:

    @Gustopher:

    and I have no doubt that a lame duck Republican senate would vote to confirm anyway, so it would be all cost and no benefit.

    I also have no doubt the Republicans would confirm in a lame duck session. But lame duck senators voting in the nominee of a lame duck president* would drive home the illegitimacy of their actions. Especially if they continue to prattle on about “will of the voters” and “elections have consequences”.

    2
  41. gVOR08 says:

    @Northerner: @Gustopher:

    Why do you assume that this insanity will work it’s way through the system? And why do you assume Canada won’t be next?

    From a recent Guardian article on the easy reelection of the PM of New Zealand who imposed heavy COVID restrictions.

    Since 1991, UMR has asked poll respondents whether they felt the country was on the right track, with the response staying “basically positive” for the past 21 years, even during the global financial crisis and the Covid-19 pandemic, which has prompted the deepest recession in decades. Since 1991, UMR has asked poll respondents whether they felt the country was on the right track, with the response staying “basically positive” for the past 21 years, even during the global financial crisis and the Covid-19 pandemic, which has prompted the deepest recession in decades.

    “A huge reason that our politics is not so extremely polarised and so far out there is because we no longer have Murdoch-owned press in New Zealand, and it’s never taken a foothold,” said David Cormack, the co-founder of a public relations firm and a former head of policy and communications for the left-leaning Green party.

    My advice – if Rupert, or any of his kids, show up at the border, shoot them on sight. They’ve screwed up Australia, the UK, and the U. S., most of the English speaking world. Canada’s a nice place, don’t let them do it to you.

    4
  42. Just nutha ignint cracker says:

    @Gustopher: The only problem with the Democrats blowing up the entire institution of the Senate is that it’s already been blown up. We’ve had 10 or 12 years of the Senate doing as little legislation as was humanly possible except for this recent spate of judicial appointments since the filibuster was killed. How the Democrats would have gone about blowing it up more–aside from dynamiting the building itself–mystifies me.

    Moreover, you’re right about the value of doing it. For better or worse, the nation is now in the habit of expecting the Democrats to do any lifting at all–heavy or otherwise–as it relates to functioning government. Democrats acting like Republicans may not have a bottom line value no matter how appealing it might seem to those seeking retribution.

    3
  43. An Interested Party says:

    The points are: the candidate it deserved, the process is OK, and elections matter. If one is unhappy, go out and convince the hearts and minds of the electorate and win elections.

    Good to know that you approve of Democrats expanding SCOTUS, should they win the White House and the Senate…

    Democrats acting like Republicans may not have a bottom line value no matter how appealing it might seem to those seeking retribution.

    In the end, it isn’t about retribution so much as it is about preventing senators who represent a minority of this country’s population from acquiring as much power as they can and doing whatever they can get away with…

  44. Just nutha ignint cracker says:

    @gVOR08: While what you say is true, I see two issues with driving home the point. First, significant numbers of the population would probably not understand the problem.

    Second, of those who understand the problem, roughly half don’t give a sh!xt as long as they get what they see as a good outcome. They’ll be as happy to rule over the ashes as over anything else.

    1
  45. Mister Bluster says: