Supreme Court

Associate Justice Amy Coney Barrett

The 103rd Associate Justice has been confirmed.

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This evening, by a vote of 52-48, the U.S. Senate approved the nomination of Judge Amy Coney Barrett to be the 103rd Associate Justice of the Supreme Court of the United States. He confirmation comes only thirty days after her nomination by President Trump, and only eight days before the election.

Justice Barrett's confirmation is the closest before a Presidential election in our nation's history.  It is not, however, the quickest confirmation. Not close. Multiple justices within our nation's history have been confirmed within a day of being nominated, though no justice has been confirmed that quickly in nearly 80 years; James Byrne was confirmed the day he was nominated in 1941. (There's a handy list on pp. 9-11 of the Appendix to Ilya Shapiro's Supreme Disorder.)

As Adam Feldman notes, the confirmation of Justice Barrett is the quickest confirmation since that of Associate Justice John Paul Stevens in 1975, who was confirmed in only 19 days. Justice Blackmun was confirmed within 27 days in 1970, and Sandra Day O'Connor was confirmed in 33 days in 1981. Jsutice Ruth Bader Ginsburg, who Justice Barrett replaces, was confirmed 42 days after her nomination in 1993.

Since the mid-1970s, it's typical for nominations to take 70 days or so. Of sitting justices, Clarence Thomas took the longest to confirm. He was confirmed 99 days after his nomination in 1991. Justice Brett Kavanaugh was confirmed in 88 days.

Setting aside justices who were never confirmed because the Senate failed to act on their nomination, as happened with Merrick Garland, the longest confirmation was for Associate Justice Louis Brandeis. The Senate took 125 days to confirm Brandeis in 1916. Justice Potter Stewart comes in second, as it took the Senate 108 days to confirm him in 1958.

NEXT: The Seventh Rule of Court Packing Is To Rule Out Term Limits for Supreme Court Justices

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    1. ACB

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  1. Wonder if the Twits on Twatter are still so gung-ho about starting a civil war now?

  2. Whew! now there’s no chance that the outcome of an election might accidentally affect the makeup of the Court. That should improve public perception of the Court!

  3. Now we just need the Court to mandate gay divorces and reverse abortions. Then American will be Great Again!

    1. If you can tell us how to do a reverse abortion, I’ll bet a lot of people would like their feti resurrected.

      1. You mandate it and arrest the people who don’t do what they’re mandated to do.

      2. “If you can tell us how to do a reverse abortion”

        Easy. You just replace the surgical vacuum with a leaf blower.

  4. I’ll bite: which would-be justice waited the longest before getting a vote and being rejected? I’ll go out on a limb and guess Bork.

    1. No, it was Garland. No wait is longer than eternity.

      1. Yep both Bork and Garland were unacceptable to the Senate at the time they were nominated.

        Sometimes, the answer is no.

        1. How do we know whether Garland was or was not acceptable to the Senate? He never received a hearing or a vote.

          1. He was specifically picked because Republican Senators would have preferred him to Sotomayor or Kagan.

          2. Well, the Senate gets to make its rules, and Garland was not deemed acceptable under the rules. So he was unacceptable.

            1. He would have been confirmed. That’s why McConnell did not allow a vote or even a hearing.

            2. “Well, the Senate gets to make its rules, and Garland was not deemed acceptable under the rules.”

              That’s an interesting interpretation of “Mitch wasn’t feeling it.”

      2. Or it was one of the 26 nominees before him that never received a vote – you know, since that is the most common way for a Supreme Court nomination to fail?

    2. For Bork, a period of 108 days passed between when his nomination was received in the Senate and final action on the nomination by the Senate. The time period was 100 days for Homer Thornberry, and 92 days for Clement Haynsworth.

  5. Speaking of unexpected court openings, RIP to Judge Torruella on CA1.

    I hadn’t realized (although others might have been paying more attention), but Judge T. never bothered to go senior, so that finally opens up a spot on CA1 that Trump could potentially fill.

    Assuming the Rs move ahead on an appointment, any thought as to the leading candidates? I wonder if they might go for DMass USA Lelling given that his tenure could potentially be up soon anyway.

    Of note, Judge T. was on the panel that heard argument in SFFA v. Harvard.

    If CA1 in fact receives an appointee, does that leave CAFC as the only circuit court not affected by Trump so far? We may never get to see his take on patent cases (putting aside Judge Albright in WDTX).

  6. Where’s the Reverend?

    I need some salt for my dinner.

    1. I applaud this development. It will make 2021 all the sweeter. What’s one handmaid against elimination of the filibuster, a new voting rights act, universal health care, and some new Supreme Court justices? Add admission of two or three states, enlargement of the Electoral College, and a few purely gratuitous zingers for clingers, and 2021 could be a momentous year for modern, educated, reasoning, accomplished, decent America.

      See you a in a week, clingers. Then again in three months. After that, I doubt better Americans will be much interested in seeing or hearing conservatives.

      Unless Trump is right, of course, and the Republicans take the House . . . .and the White House. Good luck with that, clingers.

      1. Open wider, Rev.

        1. Why?

          Are conservative no longer the losers of our culture war?

          Are the red-state backwaters suddenly going to prosper at the expense of our modern, educated, skilled blue-state communities?

          Are the Volokh Conspirators now respected and mainstream members of legal academia, no longer misfits at the fringe?

          Is a comeback for racism, gay-bashing, misogyny, and other forms of right-wing bigotry underway in America? Has organized, old-timely superstition miraculously ended its decline in America, because one tongues-speaking handmaid got 52 Senate votes? Has the tide of the culture war been reversed . . . Another miracle, evoking the parting of the Red Sea?

          Keep counting on miracles . . . It suits you.

          1. Roughly translated: “I’m MEEEELTING! Melting away….”

            1. I’m sure SOMEBODY, SOMEWHERE will miss you…

      2. RALK @ 9:33 pm

        “What’s one handmaid against elimination of the filibuster, a new voting rights act, universal health care, and some new Supreme Court justices?”

        Says the foamer who can’t get past his bigotry of women.

        I’m trying to consider why you are like this – did a girl in 4th grade get more votes for hall monitor and you never quite got over it?

        “Then again in three months.”

        I am counting on there being court enlargement, more Senators, more Representatives, more states. Go big or go broke RALK! Drive it all home.

        Until then, close your eyes, tilt your head back and accept the sweet liquid of liberty. Swallow the goodness and wash away your bigotry.

  7. Like Gorsuch, with whom she will always be paired, the whiff of illegitimacy will always cling to her.

    1. Do you think that whiff will change the outcomes of any rulings?

      Because if not…

      1. That depends, among other things, on whether Justice Barrett does the honorable thing and recuses from any presidential election dispute that may reach SCOTUS.

        1. Why should she do that? Generally a judge has an ethical obligation to participate in a case, unless there is a conflict or some other ethical issue. Why should Barrett in particular recuse?

          1. Because one of the parties in interest appointed her while the litigation was imminent.

            1. Imminent? The basis for the litigation has not even happened. There is no “controversy” in the Article III sense, and federal courts lack jurisdiction to decide any such question, which currently is hypothetical and speculative.

              Indeed even more so than the usual run-of-the-mill advisory opinion. What issues of law will the Supreme Court be called upon to decide in connection with any “presidential election dispute?” No one knows as of now.

              1. There are plenty of ongoing conflicts regarding whether or not ballots count involving people who have already cast theirs. The party of “we don’t want to count all the ballots, because our candidats aren’t chosen on most of them” is still trying to disenfranchise non-Republican voters.

        2. Sorta like how Ginsberg and Breyer “did the honorable thing” and recused from Clinton v. Jones?

          Or were you shooting for more of a sui generis standard?

          1. Paula Hound Dog filed her lawsuit long after Ginsburg and Breyer were appointed. Here post-election litigation is threatened and imminent. That is the difference between Barrett and Gorsuch and Kavanaugh.

            1. Ooooh… “litigation is threatened and imminent.” That knocks out your Caperton gambit — see my comment below.

              Face it, my friend — it’s just not possible to slice baloney that thinly.

              1. Election litigation is presently ongoing regarding whether and when votes will be counted, and lawsuits regarding stays of lower court decisions are presently before SCOTUS.

                Pay attention.

                1. Oh, I’m paying quite exquisite attention to your original demand for recusal from “any presidential election dispute that may reach SCOTUS.”

                  You’re out of lilypads.

    2. You liberals think anyone who doesn’t kowtow to the homosexual agenda has a whiff of illegitimacy.

      1. It wouldn’t be the Volokh Conspiracy — a white, male, right-wing blog — without the bigots.

        1. And thus you showed up to fulfill the prophecy.

      2. I missed the meeting and never got my copy of the agenda. What’s on it?

    3. Is a “whiff” anything like a penumbra? An emanation?

      1. In this case, it’s more of an overpowering stench.

    4. Mmmm, delicious.

  8. Man, did Mitch get cut off from his adrenachrome supply? Dude looks like absolute shit.

    1. Karma’s a bitch, and then you die.

  9. I have seen little discussion of Judge Luttig´s proposition that due process requires Justice Barrett´s recusal from any post-election challenge to the result of the presidential election. The Supreme Court in Caperton v. Massey (2009) opined that ¨Just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause.¨

    1. Catchy quote, yo, but Caperton involved influence of an appellate judgeship in the court that would ultimately hear the appeal of a jury verdict that had already been issued at the time of the influence.

      If that’s all you have, I think we can sleep soundly tonight.

      1. The conflict is even greater here. Don Blankenship (of Massey Coal Company) spent money to influence the election, but he was not the appointing authority.

        No reasonable person can have confidence in any pro-Trump ruling by Justice Barrett.

        1. Do you want Kavanaugh and Gorsuch to also recuse themselves?

          Let’s get the anti-Trump liberals to also recuse themselves. Their bias is palpable. That leaves it, what, 2-0 Trump?

          Get real.

          1. Justice Ginsberg was very pointed in her pre-election criticism of Mr. Trump. Her vote will not be counted in any election dispute involving the Trump candidacy.

      2. “If that’s all you have, I think we can sleep soundly tonight.”

        You sound like the coach who complained that the referees were calling the game fairly. “All I want is my fair advantage”.

  10. Justice Barrett will serve this country with honor, and distinction.
    Glad that this part of the on-going judiciary battle is over. I hope Justice Barrett does indeed do everything in her power to preserve our Republic, as she said in her remarks.

    Next, her 7th Circuit replacement (already named) needs a hearing. There are another dozen and a half nominations to district courts on the executive calendar that need votes on the Senate floor.

    1. ” I hope Justice Barrett does indeed do everything in her power to preserve our Republic, as she said in her remarks.”

      So she’s an anti-Trumper, now, too?

  11. Schumer said the confirmation “will go down as one of the darkest days in the 231-year history of the United States Senate.”

    If you want to understand what’s wrong with American government, look at that quote versus the reality of ACB. She is well qualified and obviously capable — to say the least.

    If ACB is darkness to you, that reflects extremely badly on you. You might want to fundamentally re-examine your life.

    1. ACB isn’t dark necessarily, although her character leaves something to be desired by accepting this nomination. The process is exceptionally dark though. Extremely morally transgressive. If you don’t see that, it reflects badly on you too.

      Ted Cruz said we could have eight justices in a contentious election year and possibly longer. Then four years later he said we must have a nine member court because of an election year. The hypocrisy is astounding.

      Lindsey Graham gave his word that there would not be another confirmation in similar circumstances. He was on tape. Then he went back on it and lied about the reason (he made that statement after Kavanaugh was already confirmed).

      Finally, Mitch McConnell and everyone who said the American people deserving a voice in 2016 lied. They were lying. We know they were lying because they put out statements within one hour of Ginsburg’s death, and six weeks before an election, that they would fill the seat. If they weren’t lying in 2016 and truly believed that Americans should have a voice, there at least would have been a pause, or a debate, or some recalcitrant Republicans. There were none. Because they were lying.

      Lying to the American people about their worth to the system is incredibly dark, offensive, and degrading. Remember: he lied to you too. You probably defended blocking Garland by saying Americans should vote on it. He degraded you, he degraded, the Senate, he degraded all Americans with this lie. Like Immanuel Kant believed: lying is the worst moral transgression because it deprives people of rational choice. In this case, they literally lied about choice itself!

      This is dark stuff from incredibly dark and nihilistic people. You should fundamentally re-examine your life if you think this process was remotely okay.

      1. Who would have thought politicians might not live up to (a possibly misleading recounting of) what they said? Have politicians ever acted that way before?

        1. 1. It’s not misleading, that’s what he and others said. If historical precedent and party control dynamics were the only reasons they did what they did, they wouldn’t have needed to say anything about the role of the American people in the process in 2016. But they did and it was a lie. They actually didn’t believe Americans deserved a voice. Again, if they believed what they said in 2016, we wouldn’t be having this conversation. They don’t think you deserve one either. You’re a victim of the lie too.

          2. The rest of your statement is the tired justifications of a cynic and nihilist. Just because politicians may often behave dishonestly doesn’t mean they don’t deserve to be called out and held accountable for it. Lying is bad. Lying about our worth as participants in the political system is particularly egregious.

          I decline to just accept unfairness on the grounds that life is unfair. It would be less unfair if people stopped using that as an excuse.

          1. All you people out there who don’t take every passing utterance of politicians as the equivalent of a blood oath: you are all proclaimed cynics and nihilists and bringers of darkness.

            1. “A passing utterance?” Really? The Senate Majority Leader on the Senate Floor explaining his reasons for blocking a Supreme Court confirmation for over 200 days, that everyone in his caucus parroted is just a “passing utterance?”

              At least try to justify hypocrisy and lying on utilitarian grounds, don’t give me
              some bad faith bullshit.

              1. Justification: they changed their minds.

                1. They didn’t. They never believed it in the first place. They lied in 2016. Stop defending them, it makes you look like you endorse lying as a matter of course. I’m sure you try to avoid lying in your personal life, no?

                  1. I’ve been wrong before. Changed my mind. Decided something I thought was one way and was important actually wasn’t that way. Or that it was, but something else was more important.

                    You can call it lying if you want. Or learning from mistakes. Or being wrong about a thing I told someone. Or whatever. It doesn’t matter what some random internet dude names it.

                    Unlike politicians, I don’t make speeches all day and have guys like you pretending that you’re owed some very specific future performance years later based on a half sentence out of a million sentences.

                    And that’s owed to you for … what? For the thing you did? For the help you gave? For all the kindnesses and generosity you and guys like you showed? When did you earn this future return on these carefully picked phrases from years ago?

                    You didn’t earn it and you weren’t entitled to it. You can complain about not getting what you never tried to earn. Not sure why anyone should take those sorts of complaints seriously. Or even pretend to.

                    1. “I’ve been wrong before. Changed my mind. Decided something I thought was one way and was important actually wasn’t that way. Or that it was, but something else was more important. You can call it lying if you want. Or learning from mistakes. Or being wrong about a thing I told someone. Or whatever. It doesn’t matter what some random internet dude names it.”

                      What mistake did they make in 2016? They shouldn’t have said the American people deserved a voice? They were wrong about that? Getting power was more important than this apparently important belief? Why did they change their mind suddenly on a dime if they ever believed what they said in 2016?

                      “ And that’s owed to you for … what? For the thing you did? For the help you gave”

                      “ You didn’t earn it and you weren’t entitled to it. You can complain about not getting what you never tried to earn.”

                      What the actual fuck? Do you think that being told the truth is the something that people need to earn and are entitled to because of the things they did? Is your worldview really that transactional? Do you regularly lie to people who you think don’t “deserve” the truth so you can get what you want?

                    2. You’re still complaining about someone not giving you something you never had coming. You can whine but Daddy, you promised!!!!. Whine as much as you want.

                      People who do what Democrats did to Brett Kavanaugh don’t deserve rewards. Be less terrible.

                    3. The truth is not a reward to be earned. It is a moral obligation. Thinking it is something you earn is actually terrible. You have extremely bad ethics. I may have anxiety about Trump, but you are apparently a sociopathic sadist who views moral obligations as transactional and revels in the pain of others. I would suggest you see a therapist, but I don’t think there is much you can do about personality disorders.

                  2. + 1 to all your comments here, LTG.

                    1. It’s incredible how with each post Ben_ goes further and further in demonstrating his bad ethics. It’s gone from the simple cynicism of “all politicians lie” to “some people deserve to be lied to and you have to earn the truth from others.” In another thread he thinks it is “crybullying” to call out sadism. The Trump-era really has exposed some extreme darkness in a lot of people.

                    2. Ben_ thinks all liberals are immoral and don’t care about the costs of their proposed policies.

                      He also believes maintaining the status quo definitionally has no cost.

                      He’s too dumb even to idealogue right, so he makes up for it with spitefulness.

                      I am not a fan.

      2. Don’t despair about the darkness. The light of reason will overcome the darkness. That’s the American way.

      3. Lying to the American people about their worth to the system is incredibly dark, offensive, and degrading.

        Existential doom and gloom aside: how incredibly lucky are we, to live in a country in which we can punish “lying” through simply visiting the poll booth or bubbling a few forms from the comfort of your home!

        1. We’re talking about the Senate here, an anti democratic institution which was created to ensure the primacy of the White race, and still serves that function.

      4. It must really hurt to have your childhood heroes, the Super Critters of Congress, revealed to be full of shit and duplicitous flipfloppers to boot.

    2. “If you want to understand what’s wrong with American government, look at that quote versus the reality of ACB. She is well qualified and obviously capable — to say the least.”

      The problem was less the candidate than the path to confirmation. Mitch is not “well-qualified and obviously capable”, to say the least.

  12. It’s true that, as Adler points out, Stevens, O’Conner, Blackmun, and Ginsburg were confirmed in roughly the same number of days as Barrett. But three of those justices were confirmed by a unanimous vote and the fourth had only 3 negative votes. I suspect that a confirmation process of this rapidity when, as here, there is significant opposition to the appointment is unprecedented. I am not expressing a view on whether Barrett belongs on the court. I am suggesting that the Democrats have a point when they complain that the confirmation process was rushed.

    1. But three of those justices were confirmed by a unanimous vote and the fourth had only 3 negative votes.

      It’s almost as though those justices were nominated back in the day when the votes were about the senators’ perceptions of the qualifications of the candidates. Had that been the case today, I suspect you’d have seen close to a unanimous vote here as well.

      1. Or 2016, which is why McConnell had to block Garland.

      2. How many Republican votes to did Harriet Miers get??

        1. Harriet Ellan Miers (born August 10, 1945) is an American lawyer who served as White House Counsel to President George W. Bush from 2005 to 2007. A member of the Republican Party since 1988, she previously served as White House Staff Secretary from 2001 to 2003 and White House Deputy Chief of Staff for Policy from 2003 until 2005. In 2005, Miers was nominated by Bush to be an Associate Justice of the Supreme Court of the United States to replace retiring Justice Sandra Day O’Connor,
          “but—in the face of bipartisan opposition—asked Bush to withdraw her nomination.”

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  14. There’s a handy list on pp. 9-11 of the Appendix to Ilya Shapiro’s Supreme Disorder.

    There’s a pretty good list on Wikipedia too:
    https://en.wikipedia.org/wiki/List_of_nominations_to_the_Supreme_Court_of_the_United_States

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