When the President announces a nomination to the Supreme Court, LDF traditionally prepares a detailed report outlining the nominee’s background, judicial philosophy, and judicial record, and assesses the import of those factors on matters of civil rights and racial justice. During the Trump Administration, we prepared such reports when then-Judge Gorsuch and then-Judge Kavanaugh were nominated to the Court.The circumstances of Judge Amy Coney Barrett’s nomination to fill the vacancy created by the passing of Justice Ruth Bader Ginsburg, however, are different and thus warrant a different approach. We oppose the confirmation of Judge Barrett to the United States Supreme Court. 

We base our opposition on both the extraordinary circumstances in which this confirmation effort has unfolded, and on the record of this nominee whose stated views and writings demonstrate that her addition to the Court would further threaten core civil rights protections that hang in the balance before a sharply divided Court.

Where We Are and What is at Stake

The U.S Is in the Midst of a Public Health Emergency
Judge Barrett’s nomination to the Supreme Court comes at an unprecedented moment in our nation’s history. The COVID-19 pandemic has upended all aspects of society, having infected more than 7.5 million Americans and caused more than 211,000 deaths since March. The disease, the likes of which our nation has not faced since the Spanish Flu in 1918, has caused not only a public health crisis, but also a severe economic crisis. Many people face deep financial hardship and housing instability because of the federal government’s delayed and inadequate response to the pandemic; today, nearly one-fourth of Americans expect someone in their household to lose their job or to take a pay cut before Election Day, and nearly one-third face eviction before the end of the year.2

However, since passing the Coronavirus Aid, Relief, and Economic Security (CARES) Act in late March 2020, Congress has failed to provide further economic relief to ordinary families and small businesses. Instead, the Senate has prioritized judicial nominations, filling the federal courts at breakneck speed and with an unrelenting sense of urgency.

Against this backdrop, Justice Ruth Bader Ginsburg passed away on September 18, 2020. That same day, Senate Majority Leader Mitch McConnell announced that President Trump’s nominee would receive a vote in the Senate. The following day, President Trump announced his intent to nominate someone to fill Justice Ginsburg’s seat forthwith, and his chief of staff and legal counsel contacted Judge Barrett about filling the vacancy. President Trump offered Judge Barrett the nomination on September 21, 2020, and she accepted that same day, a mere three days after Justice Ginsburg’s passing.

The President formally nominated Judge Barrett to fill Justice Ginsburg’s Supreme Court seat on September 26, 2020, at a ceremony and reception held outdoors in the Rose Garden and inside the White House, where the guests interacted without the masks and social distancing recommended by the Center for Disease Control to limit the spread of COVID-19 infection. Since that event at the White House, a number of attendees, including President Trump, First Lady Melania Trump, and two senators on the Senate Judiciary Committee—Thom Tillis of North Carolina and Mike Lee of Utah—have tested positive for COVID-19 and entered quarantine. Other members of the Committee, including Senator Josh Hawley, were present at the White House ceremony. Senator Lee attended an in-person meeting of the Senate Judiciary Committee five days after the Rose Garden ceremony. At the hearing he spoke forcefully and animatedly without a mask in the presence of his Committee colleagues. Despite requests from their Democratic colleagues that all members of the Committee submit to COVID-19 testing prior to the beginning of the scheduled hearings, Republicans members of the Committee have refused to do so.

What is at Stake for Core Civil Rights Protections?

The Supreme Court is already far more conservative than it has been at any point in modern history. The Court is bitterly divided on key issues, and we have already witnessed a substantial erosion in the Court’s commitment to civil rights.

Millions of Americans are in the Process of Voting

More than 5.6 million Americans had already cast their ballot in the General Election as of October 8th3 In addition to the presidency, races for Senate seats are on the ballot in 35 states.

When President Obama nominated Chief Judge Merrick Garland to replace the late Justice Antonin Scalia in March 2016, Senate leadership refused to consider the nominee asserting that the vacancy arose too close in time to the presidential election—then over six months away— and that the American people should have an opportunity to have their voices heard through their participation in the November 2016 presidential election before the Senate considered the confirmation of a new Supreme Court justice. In Senator Thom Tillis’s words: It was “essential to the institution of the Senate and to the very health of our republic to not launch our nation into a partisan, divisive confirmation battle during the very same time the American people are casting their ballots [in the presidential primaries] to elect our next president.”4 Senator Lindsey Graham, the current chair of the Senate Judiciary Committee, also opposed moving forward with the nomination of Merrick Garland and stated that there would be a “new rule” that no Supreme Court nominee would be considered in the last year a President’s Term. He further stated:

“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, and you could use my words against me and you’d be absolutely right.5″

Other Senators agreed in 2016 that it would be improper to move forward a Supreme Court nominee during a presidential election year because, to quote Senator John Cornyn, “the American people deserve to have a voice in the selection of the next Supreme Court justice.”6

If it would jeopardize the health of our Republic for the Senate to consider a nomination made in March of the last year of a president’s term, it would most assuredly strike a blow to the integrity of our constitutional democracy for the Senate to move forward with filling a vacancy on the Court as millions of Americans are actively engaged in early voting and absentee voting to select a president and senators in contested races around the country, and less than a month before Election Day on November 3rd. Yet, that is precisely what Senate leadership seeks to do now.

Worse still, it is this very election which the President of the United States has sought to undermine and delegitimize with baseless claims of fraud. The President has even taken the unprecedented step of refusing to commit to the peaceful transfer of power if he loses.7 And finally, this President has tainted this confirmation process and his nominee by publicly stating that his nominee must move forward so that she will be in place should matters related to the election go before the Court.8 Specifically, President Trump has said, referring to the outcome of the election, “I think this will end up in the Supreme Court. And, I think it’s very important that we have nine Justices.”9 He further shared his belief that “having a 4-4 situation is not a good situation.”10 The implication of the President’s statements—that he expects this nominee to assist with ensuring his reelection—is repugnant to the integrity of the Supreme Court, and has tainted the legitimacy of the confirmation process for this seat. Rather than recognize the unseemly implications of President Trump’s statements and remove any questions about her impartiality, Judge Barrett has thus far refused calls to recuse herself from any case involving a contested presidential election for 2020.11

Judge Barrett's Record

As stated above, this process would be illegitimate regardless of the nominee and regardless of the president. But the nomination of Judge Barrett to the nation’s highest court raises additional concerns.

The Truncated Confirmation Process Undercuts the Senate’s Obligation to Thoroughly Vet Supreme Court Nominees

In its rush to move this confirmation process forward, the Senate also abdicates its obligation to carefully and fully vet any nominee for a lifetime seat on the most powerful judicial body in the world. Senator Graham, the Chair of the Judiciary Committee, has announced that confirmation hearings will proceed on Judge Barrett’s nomination; he set the Senate Judiciary Committee to begin the hearings on October 12th and expects to send Judge Barrett’s nomination to the full Senate by October 22nd and to confirm her as soon as October 26th, a mere eight days before Election Day. On this timeline, the Senate would be on pace to confirm Judge Barrett as a justice on the Supreme Court within 40 days of Justice Ginsburg’s death, and within 30 days of her formal nomination. The timeframe for her confirmation process is far shorter than that of the last four confirmed justices: Justice Sotomayor (66 days), Justice Kagan (87 days), Justice Gorsuch (65 days), and Justice Kavanaugh (90 days), none of whom were confirmed in a presidential election year.

This timeframe is woefully inadequate for the Senate to undertake the rigorous review of the record warranted for any nominee to our nation’s highest Court. Serious questions have already been raised about documents that were not included in Judge Barrett’s disclosures to the Senate Judiciary Committee.

In the week before the scheduled confirmation hearing, previously undisclosed information about Judge Barrett’s record have come to light. Just days before the scheduled hearing, Judge Barrett herself released new information about her participation in a controversial statement about abortion. These new revelations highlight why the Senate Judiciary Committee needs additional time to properly and thoroughly vet this nominee. Sacrificing the integrity of the Senate’s constitutional duty to “advise and consent” to political expediency strikes yet another blow at the legitimacy of this process.

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