The Democrats’ Attacks On Originalism Fell Flat During The Barrett Confirmation

When President Trump announced his intention to swiftly fill the Supreme Court vacancy created by the death of Justice Ruth Bader Ginsburg, commentators fretted that a Supreme Court confirmation fight in a heated election season would plunge the nation into more vitriol and conflict than it could bear.

Yet, less than two months later, the Senate has voted to confirm Judge Amy Coney Barrett — to become Justice Barrett — and it hardly feels like the confirmation process has been the dominant news story of the season. Rather than the high drama, conflict and chaos of the Kavanaugh hearings and other recent judicial nominations fights, this historic confirmation has played out (relatively) quietly, orderly, almost even respectfully.

Democrats, of course, objected to the idea of filling the vacancy. Given the fact that they have been aggressive belligerents in the judicial wars for decades, it’s hardly credible that they are truly scandalized by the timing, or that they would have behaved differently if the shoe were on the other foot. Nonetheless, largely on this objection, they’ve managed some half-hearted actions designed to display their displeasure but powerless to delay the inevitable. They’ve engaged in irresponsible rhetoric suggesting there’s something illegitimate about the president and the Senate performing core Constitutional functions. What they conspicuously failed to do, however, is to make a case that Judge Barrett was not worthy of confirmation.

If the Senate judged nominees on qualifications, character and fitness alone — which it largely did until Joe Biden led Senate Democrats in applying ideological litmus tests to Judge Robert Bork — there could be no question that Judge Barrett deserved confirmation. Democrats did not try to make the impossible case. No doubt, the danger that any seeming personal attacks on Judge Barrett could have a negative electoral impact in the looming election played a role.

What is remarkable, though, is how tepid the criticisms of Judge Barrett’s legal philosophy ultimately were. Over three decades since the Bork experience taught Republicans that their judicial nominees best have limited paper trails, the Senate is confirming a judge who has been explicit about her originalist judicial philosophy inspired by her former boss, Justice Antonin Scalia. She has made it clear that she stands with millions of Americans who oppose abortion as a matter of her personal policy preference and conscience. Policy preferences should not drive judicial philosophy, as Judge Barrett clearly testified at her hearings, but not long ago we might have thought that either her explicit originalism or her personal political preferences would trigger vicious opposition.

The fact that a nominee with the judicial philosophy and apparent personal views of Judge Barrett can today be confirmed without apology is a tribute to the success of the conservative legal movement. Largely caught blindsided in the Bork fight, conservatives have spent decades building to this confirmation by, among other things, making their case. The central proposition they have put before the public is that it is the duty of a judge to apply the law as written, not to serve as philosopher kings pursuing their own vision of what is best for Americans by legislating from the bench. Judges play an important, but sharply limited role in our system.

In the years since Bork’s defeat, not only has conservative legal philosophy won a seat at the table, it has won the public debate. Of course, originalism still has its critics on the bench and in the academy. Progressive politicians and celebrities can disparage it in bad faith or ignorant tweets. But Democrats still do not have an answer to it, much less an alternative vision. They have no principled case for an activist judiciary, or at least not one they are willing to offer in public.

When Senate Judiciary Democrats attempted to engage in the debate over judicial philosophy with Judge Barrett, what emerged from the dais was an incoherent amalgam of appropriated conservative talking points and liberal policy preferences.

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