Who do you think you’re fooling, Senator Lee?
The first day of Judge Amy Coney Barrett’s Supreme Court confirmation hearing was a mind-numbing series of opening statements from senators — traditionally, the nominee doesn’t actually face questions until the second day — with Democrats largely focusing on the danger that Barrett would vote to strike down the Affordable Care Act.
Many Republicans, meanwhile, claimed they were outraged by suggestions that the Supreme Court engages in policymaking or even rank politics. The most explicit of these claims came from Sen. Mike Lee (R-UT).
Unmasked while he spoke, and fresh off a fairly recent Covid-19 diagnosis, the Utah senator spent much of his remarks calling attention to Supreme Court decisions that were not decided by a closely divided 5-4 vote. “Most of the Supreme Court’s docket doesn’t even consist of the hot-button issues,” Lee said — a fact that is simultaneously true and irrelevant to the millions of Americans who could lose their health coverage due to the Court. Or who could lose their right to vote. Or their access to abortions and other reproductive care.
He then delivered the biggest whopper of the entire day — the judiciary, Lee claimed, is “the one branch of the federal government that is not political.”
Lee’s claim is refuted by his party’s behavior over the past half-decade. While individual justices rarely view themselves as pure partisans, these judges are nominated by a partisan president and confirmed by partisans in the Senate. Presidents can choose judges who are likely to rule in their party’s favor in the kinds of “hot button” cases that Lee attempted to downplay.
There was a time when Republican Supreme Court nominees were not so reliably conservative. Justice David Souter, a George H.W. Bush appointee, famously emerged as a left-leaning centrist after he joined the Supreme Court. But conservative activists made “No More Souters” a rallying cry after Souter’s apostasy became apparent, and they’ve built a sophisticated network over the past several decades to screen nominees to ensure that they are reliably conservative.
President Trump has relied heavily on the Federalist Society, a kind of bar association for conservative lawyers, to identify loyal conservative judicial nominees.
If the Supreme Court were, in fact, above politics, then one would expect Lee’s party to be fairly indifferent to who serves on the federal courts, provided that an individual judicial nominee has the experience, talent, and work ethic necessary to perform well as a federal judge. But, of course, that’s not how Lee’s Republican Party has behaved. Republicans blocked Judge Merrick Garland, an exquisitely qualified judge whom President Barack Obama nominated to the Supreme Court, because those Republicans correctly realized that a solid conservative like Justice Neil Gorsuch (who was eventually confirmed to that seat) was more likely to deliver policy victories to the GOP than a moderate liberal like Garland.
Similarly, in less than one term in office, Trump has filled nearly as many federal appellate judgeships as Obama did in two terms. The reason is that Republicans controlled the Senate during Obama’s final two years in office, and they used that control to block nearly every person Obama nominated to an appellate judgeship. Trump got to fill all the seats that came open during his term, plus nearly all the seats that Obama should have been able to fill in the closing years of his presidency.
It’s unlikely that Republicans stopped Obama from filling these seats because they thought politics is irrelevant in the federal judiciary.
Republicans are also taking a considerable risk by racing to confirm Barrett before the votes are counted in an ongoing presidential election. A Washington Post-ABC News poll found that a slim majority of registered voters (52 percent) believe the vacancy on the Supreme Court should be filled by the winner of the presidential election.
Similarly, a recent CNN poll found that a plurality of Americans (46 to 42 percent) oppose confirming Barrett. According to CNN, “initial reactions to Barrett are among the worst in CNN and Gallup polling on 12 potential justices dating back to Robert Bork, who was nominated by Ronald Reagan and rejected by the Senate.”
So why are Republicans pushing an unpopular confirmation just weeks before the voters could throw many of them out of office? A possible answer is that they hope a 6-3 Republican Supreme Court will help them stay in office. Trump, for example, has predicted that the presidential election “will end up at the Supreme Court,” and he’s said that “it’s very important that we have nine justices” to resolve such a dispute.
But it’s at least as likely that Republicans understand that an additional Supreme Court seat would be such a boon to the GOP that it’s worth losing a few Senate seats over it — or even a presidential election. Contrary to Lee’s suggestion that the Court is somehow beyond politics, data shows quite clearly that the best predictor of how a judge will rule in a politically charged case is often their partisan affiliation.
In 2014, the last time a judicial attack on Obamacare was making its way up to the Supreme Court, the Washington Times examined how judges appointed by either political party handled challenges to the Affordable Care Act. It found that “Democratic appointees ruled in favor of Obamacare more than 90 percent of the time, while Republican appointees ruled against it nearly 80 percent of the time.”
The courts, simply put, are political. Lee’s own behavior — and that of his fellow Republicans, both in the Senate and on the federal bench — leaves little doubt of that reality.
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Author: Ian Millhiser
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