It’s so tempting to come up with quick takes. I did this last week upon the passing of RBG and already disagree with a couple of things I said. But I’m a glutton for punishment, so let’s try again. Here are the first things that crossed my mind in the immediate aftermath of Amy Coney Barrett’s nomination:
It’s impossible to properly express how excited I am that we’re likely to have a justice who did not attend Harvard or Yale Law School. Yes, those are great institutions, but do we really want a world where merely attending somewhere like Stanford, Duke, or Georgetown is automatic disqualification? The last 12, yes 12 justices confirmed by the Senate attended Harvard or Yale. While both schools were always well represented, having this as a prerequisite is a new thing. Sitting on the Supreme Court is a dream for many an aspiring law student. It can’t be good to know your dream is dead the minute you are forced to matriculate elsewhere. And the odds those two institutions have monopolized all the talent are incalculably low.
As it is, Barrett has checked the other boxes for nomination. She clerked at the Supreme Court for Antonin Scalia. She was already sitting on the Court of Appeals. The best way to get to be a justice is to clerk for one. Because of this requirement, clerking for the Supreme Court is a must for any law school graduate who wants a career in the upper reaches of the judiciary. Even going directly from Harvard or Yale, a lower level clerkship is often necessary to graduate to the Supremes. From Notre Dame, it’s always necessary. Barrett’s ascension may change this.
Once the Harvard/Yale barrier falls, the next step is to start nominating justices who aren’t currently on the bench somewhere. I’m not going to suggest having a law degree is a bad thing, but whether you lean left or right, Chief Justices Earl Warren and William H. Taft wouldn’t be considered qualified today.
Love him (you probably don’t), abide him, or loathe him, there’s no denying Mitch McConnell is the most powerful Senate Majority Leader since Lyndon Johnson, and perhaps ever. When still in the minority, McConnell did such a good job blocking Barack Obama’s judicial appointments that Harry Reid decided to remove the filibuster for voting on judges. Then the Merrick Garland gambit got Donald Trump elected (in a close election, if even one of several factors are taken away, the outcome changes) by convincing just enough wavering conservatives to think #judges before all else.
Blocking Garland got him a Republican president and preserved a conservative majority on the court. Reid’s short-sighted filibuster removal got Brett Kavanaugh confirmed ahead of the 2018 midterms and produced some theater that helped McConnell remain in the Senate majority. Remaining in the majority allows the ACB nomination and likely confirmation. There’s zero chance Chuck Schumer would have let a Trump nomination reach the floor any time this year after the Garland precedent.
Before RBG’s passing, Trump’s odds were looking bad. They’re still looking bad. But he hasn’t lost any ground in polls over the past week. In fact, he’s looking a little better in places like Florida and Arizona. McConnell’s odds of remaining in the majority were looking poor. Neither Trump nor McConnell had much to lose here. And while I thought it might help them to not push through the confirmation before Election Day, under the theory that #judges voters would still have something to vote for, this now looks wrong.
Picking ACB gives these voters something tangible to latch on to. Democratic opposition will remind them why they vote Republican. And #judges voters will want even more. Recognizing that Breyer isn’t guaranteed to survive another presidential term, the idea they can trust Trump with this crucial component of his job is reinforced. Much the way eating a piece of chocolate makes you want more chocolate, getting ACB confirmed quickly will only inspire #judges voters.
One last thing. This likely helps McConnell more than Trump. The Electoral College is tilted a little bit in Trump’s favor. The Senate is tilted a lot in McConnell’s. There are states Trump can’t afford to lose by pissing off moderate voters who are not voting for a senator this year. If suburban voters in Pennsylvania or Wisconsin react poorly, it would hurt Trump. But there aren’t any Senate seats at stake. Democrats need 3 seats, four assuming Doug Jones loses in Alabama. To take the majority, they’ll need to win at least a couple of seats in traditionally red states. Colorado and Maine are the only two places where a Republican is trying to keep a seat in a blue state.
We don’t know if McConnell is going to manage to keep the majority. But he’s going to get ACB confirmed. The latest benefit of the strategy he began over a decade ago. Never count Mitch out. Ever.
Kamala’s Time In the Witness Protection Program is Ending
Remember when Joe Biden picked his running mate a few weeks ago? It seems like months and months. A 2020 month is like a dog year. She hasn’t been visible. Which is ok. Often the best thing a Veep nominee can do is stay out of the way and keep from accidentally sinking the campaign. In non-Covid times, she’d be out on the campaign trail, trying to crush Trump with sound bites. Instead, I guess she’s chilling and getting ready for the VP debate in a couple weeks.
This relative anonymity is going to end soon. Harris is on the Judiciary Committee and will have her chance to ask ACB some questions. Expectations will be high. Democrats who think Biden is too moderate and don’t love Kamala’s law enforcement background will demand she eviscerate the nominee. But if she’s too over the top, it will bother the voters who don’t love the Biden-Harris ticket but would otherwise vote for them because of the alternative.
Anyway, it’s a trap.