On October 26, 2020, Judge Amy Coney Barrett was confirmed to the Supreme Court. Just six weeks after Judge Ruth Bader Ginsburg died leaving a vacancy on the Supreme Court, and a mere eight days from election day, the Republican-led Senate voted to confirm the controversial judge—and effectively shredded our last hope for a fair and impartial Supreme Court.
In 2016, the Republican-led Senate refused to even hold hearings for President Obama’s Supreme Court nominee, Merrick Garland. The argument put forth by Senator Mitch McConnell at the time was that they could not confirm a potential justice in an election year because he wanted to “give the people a voice in the filling of this vacancy.” Other senators confirmed this line of thinking. Senator Lindsey Graham said, “I want you to use my words against me. If there’s a Republican president in 2016 and a vacancy occurs in the last year of the first term, you can say Lindsey Graham said, ‘Let’s let the next president, whoever it might be, make that nomination.”
Well, fast forward four years—we have a justice confirmed just eight days before an election. Eight days.
Judge Barrett was confirmed in an election week, let alone in an election year. An election that, if the polls are to be believed, is not going well for the impeached president who nominated Judge Barrett. Considering that the majority of Americans—57 percent according to a recent Post-ABC poll—support letting the winner of the presidential election nominate the judge who would fill Justice Ruth Bader Ginsburg’s seat, who exactly is getting a voice in filling this vacancy? Certainly not the majority of Americans.
If Trump loses on election day, we have a Supreme Court Justice who was not chosen by the people. If Trump wins on election day, we have a Supreme Court Justice who believes the rules others are required to follow do not apply to her or those that agree with her. How can we ever believe she is a Justice for the nation, when she is willing to take an appointed role that most American citizens disapprove of her taking the week before a presidential election?
I cannot help but to question Justice Barrett’s ability to act as a neutral arbiter of the law. I understand ambition. I support women breaking glass ceilings all day, every day. I went to law school and know the daily uphill battle of women in the legal field. I have female friends who have clawed their way to the top of law firms, having to work ten times harder than their male colleagues for half the credit and pay. But this isn’t about ambition and glass ceilings. This is a question that speaks to her very ability to put the law and fairness above even herself.
The idea of the Supreme Court rests on impartiality. Supreme Court judges are appointed for lifelong roles under the theory that they will then be able to fill those roles without the pressure of partisan politics. The idea behind the appointment is that the justice can then fulfill his or her duties without being beholden to any party, president, or politician.
By proceeding with the confirmation days before an election, she has bought into something inherently unfair and unjust.
And the upcoming decisions she will now have a chance to weigh in on are crucial, and will affect all of us in countless ways, including our most precious civil and reproductive rights. Most pressing are the cases involving election disputes from North Carolina and Pennsylvania concerning absentee ballots and when they may be accepted. Even more pressing—the very real possibility that the results of the election will be disputed and decided by the court. The fact that she ignored the Republican’s glaring hypocrisy in order to take that seat at the Supreme Court, makes it sensible to wonder what other glaring hypocrisies she’ll ignore. It makes it hard to believe she’s able to apply rules fairly.
On the heels of those cases are questions related to the Affordable Care Act, abortion rights, and the rights of the LGBTQIA+ community. At her confirmation hearing, she alarmed activists when she refused to comment on certain landmark decisions that protected the rights of LGBTQ+ individuals.
While she remained largely silent about the Affordable Care Act, she has in the past criticized Chief Justice John G. Roberts Jr. for upholding the Affordable Care Act. And while she asserted that she did not have an agenda when it came to abortion, she has in the past signed her name to a call to overturn Roe v. Wade. Though I’m loathe to bring up her religion, because Justices are entitled to practice their religion just as any American citizen is so entitled, I would be remiss not to note she is enmeshed in an ultra conservative religious group, and it’s unclear that she will be able to separate her religious beliefs from her decisions. After all, she now has a track record of choosing her singular values over the values of the people. She has given us no reason to believe she has the best interests of anyone but herself, and those who think like her, in mind.
Taken together, this means millions may lose their health care and access to abortion rights. It’s means same-sex couples could be stripped of rights that shouldn’t even be up for debate to begin with.
No judge is guaranteed to rule in a certain way, but there’s more than ample evidence to make an informed guess at how she will rule, and also to wonder whether her ability to decide issues fairly is compromised given her speedy and objectively unfair confirmation.
Judge Amy Coney Barrett’s confirmation feels like a loss, but it should not be a reason to surrender. As voters, we are not helpless. Her confirmation is a reminder that voting matters. Putting in place leaders who value fairness matters. Her confirmation is another reminder that we have a voice, and that we can make it heard. We lost the fight for this seat, but we have not lost this election. Please vote.