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The White House Coronavirus Outbreak Won’t Stop the Barrett Confirmation

If you think something like a deadly pandemic is going to thwart the GOP’s quest for permanent and total judicial power, think again.

Judge Amy Coney Barrett, President Donald Trump's nominee to the Supreme Court and Vice President Mike Pence walk up the steps of the Capitol to meet with Senators in Washington, DC.
Susan Walsh/Getty Images

Two weeks ago, the White House held an event with more than 200 attendees where President Donald Trump formally announced his nomination of Amy Coney Barrett to the Supreme Court. Since then, the coronavirus has sent the president to the hospital, infected some political allies and many of his top-level staffers, and forced multiple Republican senators into quarantine. The Senate itself took a two-week hiatus in an attempt to slow down the spread.

That hiatus won’t affect one key body, however: the Senate Judiciary Committee, which plans to begin confirmation hearings for Barrett next week. “We’re going to have a hearing for Amy Barrett, the nominee to the Supreme Court,” South Carolina Senator Lindsey Graham, the committee’s chairman, told reporters earlier this week. “It will be done safely—but I’ve got a job to do, and I’m pressing on.” Some committee members will participate remotely; others will be on Capitol Hill in person.

The Covid-19 outbreak in Washington could yet delay the final vote on Barrett’s nomination. Three Republican senators have tested positive for the virus over the past five days and entered isolation, temporarily sapping the three-seat GOP majority. With Alaska’s Lisa Murkowski and Maine’s Susan Collins opposed to casting a vote before Election Day, McConnell could find it impossible to hold a floor vote if more senators are infected. (Barrett herself was reportedly diagnosed with the virus over the summer and has already recovered from it.)

But even a pandemic is unlikely to derail the nomination altogether. Faced with the growing likelihood of a wipeout in the November elections, Senate Republicans have no incentive to slow down Barrett’s elevation to the high court as long as they have the votes to get it done. Their strategy is driven by electoral pressure and ideological fervor, as well as a deep skepticism of public health measures. Most importantly, however, it is about power—the power to keep shaping the nation’s fortunes and destiny long after the voters have replaced them.

Barrett’s impact on the court will be substantial once she is confirmed. By replacing Ruth Bader Ginsburg, she will represent the greatest ideological shift in a single seat since Clarence Thomas replaced Thurgood Marshall in 1991. And while the Roberts court always trended to the right, it turned out to be less reliable over the past decade than many in the conservative legal movement had hoped. Affirmative action programs in higher education survived multiple rounds of litigation. Employers can no longer discriminate against gay and transgender workers. Abortion rights, though under siege in the states, have not been dramatically curtailed in recent rulings. The Affordable Care Act lives. Marriage equality is the law of the land.

Those victories may be at an end. Barrett is a former Antonin Scalia clerk who often praises him as her judicial role model. She is widely expected to trend closer to Justices Clarence Thomas and Samuel Alito than to Chief Justice John Roberts in major rulings. Many of the court’s most notable “liberal” rulings in recent years came in cases where the four liberal justices stuck together and pried away one of the five conservatives—usually Roberts or Anthony Kennedy, but occasionally one of the others. Once Barrett joins the court, however, conservatives can afford to lose a vote from Roberts or Justice Neil Gorsuch without losing the case itself.

Barrett’s confirmation brings legal conservatives closer to their dream of not just a conservative court but a reliably conservative court. It would be poised to deliver major blows not only to liberal social causes but also to the precedents and doctrines that support what they call the “administrative state” of federal agencies and their regulatory powers. A Supreme Court with six conservative justices would be far less likely to rule in favor of future Democratic policy proposals, such as Medicare for All or the Green New Deal, and far more likely to uphold conservative ones. Basic actuarial math also means that such a majority would likely hold sway for at least the next 15 to 20 years, even if the country takes a much different political direction.

Right-wing hopes that the federal courts will serve as a countermajoritarian backstop to Democratic presidents and lawmakers shaped conservatives’ approach to the judiciary for the past decade. Those hopes led Senate Majority Leader Mitch McConnell, once a distrusted figure on the party’s hard right, to block almost all of Barack Obama’s lower-court nominees after 2014, as well as Supreme Court nominee Merrick Garland in 2016. It also led McConnell and his allies to fill those vacancies with as many conservative jurists as they could after Trump took office in 2017. Even if Biden wins, he won’t be able to reverse Trump’s imprint on the courts through normal mechanisms.

Those countermajoritarian hopes can be traced to right-wing anxieties about losing power in an age of demographic and generational changes—anxieties that helped fuel Trump’s takeover of the party four years ago. The courts’ twin influence over social issues and economic policymaking also unites the Republican Party’s rank-and-file voters and its well-heeled donors and influential elites behind a single issue. That unity helps ensure that Republican senators are elected (and reelected) who toe the party line on judges and judicial nominees; outliers like Murkowski and Collins are tolerated because of their influence in their respective states, because their votes aren’t fatal to major nominations, and/or because their seats are needed to secure the GOP’s overall Senate majority.

Against this backdrop, there is no legitimate reason in most conservatives’ minds to halt or slow Barrett’s confirmation. In their minds, no procedural or precedential issue with her nomination matters more than 30 or 40 years of rulings she could deliver from the Supreme Court. The conservative legal movement is much more practiced (though still not perfect) at identifying and elevating like-minded judicial nominees since the days of David Souter and Harriet Miers. Even accusations of misconduct may not derail future Supreme Court nominees from the right. Many conservative legal activists emerged from the Brett Kavanaugh hearings with the conclusion that liberals will reflexively smear any conservative Supreme Court nominee and should be treated accordingly. (Liberals, obviously, drew a much different conclusion from the Kavanaugh saga.)

This unity of vision and commitment to raw power can be difficult for liberals to grapple with. The Democratic Party is less monolithic than its GOP counterpart; its ideological factions are far less committed to a holistic vision or ideology for the courts. That may change once the full effects of a solidly conservative Supreme Court are felt. The reckoning may come even sooner if the election is close and a newly confirmed Justice Barrett helps steer a disputed outcome toward a second Trump term, as Republican lawmakers are openly hoping as they push to place her on the court before November 3. (What better way to start a four-decade career as a countermajoritarian check on liberals?) For now, Democrats can only watch as 40 years of right-wing activism and millions of dollars in donor investments reach their logical endpoint.

Just how all-consuming is this drive? On Tuesday, Trump announced that he had halted negotiations with House Democrats over a potential pandemic stimulus bill until after Election Day. His move all but guarantees that millions of Americans won’t receive broader unemployment assistance, another $1,200 stimulus check, or other forms of relief before they go to the polls. The president instead focused on an even higher priority than helping voters. “I have asked Mitch McConnell not to delay,” he wrote on Twitter, “but to instead focus full time on approving my outstanding nominee to the United States Supreme Court, Amy Coney Barrett.”