The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Best Defense of Justice Amy Coney Barrett: No One Else Could Have Been Confirmed To Replace RBG Before The Election
"Republicans couldn’t have filled the seat without Justice Barrett. Mitch McConnell knew this, and for that reason insisted that she needed to be the nominee."
Senator Mitch McConnell is one of the most important Americans of the twenty-first Century. But for his leadership, I am reasonably confident that President Obama would have been able to fill Justice Scalia's seat. And had Donald Trump not been able to run on filling that vacancy, I am reasonably confident that Hillary Clinton would have prevailed. And then Clinton would have promptly replaced Justice Ginsburg, and maybe even Justices Kennedy or Sotomayor. Our country would look very different if Clinton served for two terms with a 5-4 or a 6-3 Supreme Court majority behind her.
Back to reality. Justice Gorsuch is sitting in Justice Scalia's seat. Justices Kavanaugh and Barrett replaced Justices Kennedy and Ginsburg. President Trump prevailed in 2016 and in 2024. And the Court's usually-conservative majority will likely endure for a generation. And Senator McConnell can take a lot of that credit.
That background brings me to an important essay by Mike Fragoso, who served as McConnell's Chief Counsel, after serving as Chief Counsel on the Senate Judiciary Committee. Fragoso, who recently joined the EPPC, is one of the most astute observers about the judiciary. I've long admired his work. Moreover, he brings inside insights from his experience.
Fragoso's latest piece is titled "In Defense of Amy Coney Barrett: Why She Was Nominated to the Supreme Court." The subtitle is "Republicans couldn't have filled the seat without Justice Barrett. Mitch McConnell knew this, and for that reason insisted that she needed to be the nominee." Fragoso makes several important points.
First, Fragoso argues that Trump had to pick a woman to replace Justice Ginsburg:
The first issue was defensive politics, which dictated that the pick needed to be a woman. As a political matter it would have been untenable to replace Justice Ginsburg with a man. With an election mere months away, and college-educated women being a reliable and increasingly progressive voting bloc, subjecting them to the indignity of replacing "the Notorious RBG" with a man would have further radicalized them. This was a political reality that President Trump had long understood—he was, after all, widely reported to have wanted a woman available to replace Ginsburg in the event a vacancy arose during his presidency. . . .
This isn't what some of Barrett's critics call—ridiculously—"DEI"; it's politics. Barrett was a highly attractive candidate to a particular, important constituency of the Republican coalition—religious women—who were ready and willing to make their voices heard to wavering senators.
I agree with Fragoso that the nominee had to be a woman. This sort of preference is not new. President Reagan pledged to nominate a woman to the Supreme Court, and his nominee was Sandra Day O'Connor. After John Roberts's nomination was elevated to the Chief Justice seat, President George W. Bush committed to nominate a woman to replace Justice O'Connor, and he selected Harriet Miers. President Biden committed to nominating a black woman for the Supreme Court, and he nominated Judge Ketanji Brown Jackson. In the old days, there was a Supreme Court seat reserved for a Catholic. And even earlier, seats were reserved for northerners and southerners. I see nothing novel about a President making politics calculations, broadly defined, when making a Supreme Court nomination.
I also agree, as a practical point, that Trump had to select a woman to replace RBG in 2020. It is no surprise that the only two nominees discussed were Barrett and Judge Barbara Lagoa of the 11th Circuit. Judge Neomi Rao was apparently not part of that conversation--a topic for another time.
Optics matter for Supreme Court nominees--especially for President Trump. Trump repeatedly boasted that Neil Gorsuch came out of "central casting." (Trump never said that about Kavanaugh.) Barrett is photogenic, charismatic, and would appeal to a wide swath of the conservative base shortly before the election. It's not surprising why he would have picked her.
Second, Fragoso says that Barrett was easier to confirm due to the fact that her record was thinner:
At the same time, the Judiciary Committee fights over and reviews their documents—opinions, speeches, briefs, public-service work products. In order to get this done in a month we needed a nominee who would not require much preparation herself and who didn't have a voluminous record with which to bog down the Senate in procedural fights.
Barrett had a manageable record. She had been a judge for around three years, which provided an established but digestible record. (As my staff told me at the time, it helped that she was a superbly clear writer.) Her previous service as a professor also meant that her prior career was not burdened with countless legal briefs or interminable executive-branch work emails. At one point, when Democrats complained that they wanted documents from Notre Dame, I asked if they really expected me to ask for the minutes of the faculty parking committee.
There is so much to unpack in these few sentences. Fragoso writes that Barrett did not have a "voluminous record." He's right! She had only been a judge "for around three years" giving her a "digestible record." He's right! Her record was not "burdened with countless legal briefs." He's right! Fragoso is absolutely correct that these attributes were helpful to promptly confirm a nominee. But her lack of a record demonstrates why she should have never been added to the short list in the first place. The purpose of a record is to demonstrate what a person was willing to publicly do with their profession. Barrett simply did not do very much. Critics were incensed when I wrote about how thin her record was. Yet Fragoso confirms there just wasn't much there. Maybe she chose to spend her time doing other things. That was certainly her choice. But those other things did not create a bona fide record for being a federal judge. How many Supreme Court clerks, who became law professors, receive Article III commissions. The number is very, very small. Again, Barrett was added to the short list before she decided a single case. And that was based on a limited record, with no relevant legal briefs, and few writings on matters of public controversy.
In September 2015, Randy Barnett and I wrote an article in The Weekly Standard, titled The Next Justices: A guide for GOP candidates on how to fill Court vacancies. The second rule we offered was that "Paper trails are an asset, not a disqualification." Fragoso may be right that having a smaller paper trail made her easier to confirm. But that should not be a marker of a strong judicial candidate. Query if Justice Alito had stepped down in June 2019, and there was ample time to confirm someone before the election. Would Barrett have still been the nom?
Fragoso mocks those who thinks Barrett is the "second coming of David Souter." Not quite. I think Justice O'Connor would be a much closer facsimile in modern history, though Justice Frankfurter is a close second.
In June 2018, Senator McConnell signaled that he preferred Judge Thapar to replace Justice Kennedy over then-Judge Kavanaugh, in part, because Thapar had an easier record to parse. The New York Times reported at the time:
While careful not to directly make the case for any would-be justice, Mr. McConnell made clear in multiple phone calls with Mr. Trump and the White House counsel, Donald F. McGahn II, that the lengthy paper trail of another top contender, Judge Brett M. Kavanaugh, would pose difficulties for his confirmation.
Mr. McConnell is concerned about the volume of the documents that Judge Kavanaugh has created in his 12 years on the United States Court of Appeals for the District of Columbia Circuit, as well as in his roles as White House staff secretary under President George W. Bush and assistant to Kenneth W. Starr, the independent counsel who investigated President Bill Clinton.
The number of pages is said to run into the millions, which Mr. McConnell fears could hand Senate Democrats an opportunity to delay the confirmation vote until after the new session of the court begins in October, with the midterm elections looming the next month. And while Judge Kavanaugh's judicial opinions are publicly known, Mr. McConnell is uneasy about relitigating Bush-era controversies, the officials briefed on his discussions with Mr. Trump said.
With Senator John McCain's absence because of brain cancer, Republicans have just 50 votes, and Mr. McConnell does not want to draw the ire of his libertarian-leaning Kentucky colleague, Senator Rand Paul, who opposed hawkish Bush policies. Aides to Mr. Trump and Mr. McConnell declined requests for comment.
Mr. McConnell is similarly wary of imperiling the votes of two moderate Republicans, Senators Lisa Murkowski of Alaska and Susan Collins of Maine. He has told Mr. Trump he could lose the two senators, who support abortion rights, if he picks another judge seen as a contender, Amy Coney Barrett, an outspoken social conservative who some observers believe may be more open to overturning Roe v. Wade.
McConnell was right about Kavanaugh. Before any of us had ever heard of Christine Blasey Ford, the biggest issue with Kavanaugh was his paper trail in the Bush White House. Does anyone even remember Corey Booker's Spartacus Moment? Then again, Barrett was apparently under consideration, and McConnell thought she would be harder to confirm. McConnell worried that Murkowksi and Collins would not vote for Barrett in 2018. In 2020, Murkowski voted for Barrett, but Collins did not. Collins said she objected to the timing of the nominee before the election. I suspect Collins would have vote for Barrett in 2019, but who knows. Still, why was Barrett even in the running for the Kennedy seat? In June 2018, Barrett had been a judge for barely a year--proof again that her lack of a record was seen as a pro and not a con. The cake was baked for her as soon as she was nominated to the Seventh Circuit.
Third, Fragoso speaks to the "dogma" incident.
The second issue was offensive politics. Ever since the late Senator Dianne Feinstein had told then-Professor Barrett, "The dogma lives loudly within you," Barrett had been a folk hero among Catholic Republicans and social conservatives. Almost every Catholic in the D.C. area had a "dogma" mug. A nominee with an established, independent political brand was manna from heaven in terms of generating support for a snap confirmation among potentially squeamish Republicans.
Did every Catholic in D.C. really have a "dogma" mug? I've only ever seen a handful of them. In candor, I think this story has become something of an urban legend. I wrote about the Feinstein exchange here:
I went back and rewatched the whole clip on CSPAN. After Feinstein said it, Barrett sort of stared blankly in incredulity at Feinstein, and the colloquy ended. Barrett never actually said anything in response. Feinstein pivoted to ask some question of Judge Joan Larsen. I know this "dogma" line made Barrett something of a mini-celebrity, but I never quite understood why. This is not like Clarence Thomas and Joe Biden going toe-to-toe. Moreover, Feinstein at the time was suffering from senility. (It is no coincidence that senile and Senate share the same root.) Feinstein made an utterly inappropriate statement that was universally panned. And Barrett was easily confirmed.
The blank look that Barrett gave to Feinstein reminded me of the face she made after shaking Trump's hand at the State of the Union. This was not the visage of a cool operator. This was the visceral reaction of a person who didn't know what to do, and momentarily forgot she was on camera.
Fragoso concludes:
Republicans couldn't have filled the seat without Barrett. McConnell knew this, and for that reason insisted that she needed to be the nominee. Without Amy Coney Barrett, whoever Biden would have put in that seat would have made Ruth Bader Ginsburg look like Robert Bork.
I would not presume to second-guess McConnell's vote counts of his own caucus. Once Ginsburg died, it was going to be Barrett. Maybe the best defense of Justice Barrett is that no one else could have been confirmed in that window, and it was better to have a Justice Barrett than an empty seat that would be Biden. And with the benefit of hindsight, with all the tumult after the 2020 election, it would have been very difficult to confirm anyone. But that is not much of a defense of Barrett's nomination on the merits. That defense can only be made based on her record at the moment she was added to the Supreme Court short list.
My objection today, as it has always been, was that Barrett should have not been appointed as a Circuit Judge with her admittedly thin record, and should not have been placed on the short list before she decided a case. Barrett had her backers who vigorously pushed and promoted her based on the "trust me" promise. We really have not learned much since people said "trust me" about John Roberts. We cannot trust supporters of any judicial nominee. The response must be, prove it.
