As Donald Trump and Senate Republicans try to confirm Amy Coney Barrett as a justice of the Supreme Court in the 38 days between her nomination and Election Day—with many votes already being cast—much of the criticism has focused on the hypocrisy of moving this nomination forward when Republicans blocked Merrick Garland’s nomination for 237 days before the 2016 election.
That point is important, but the problem with pushing this nomination through at breakneck speed goes well beyond the distastefulness of hardball politics and a feeling of fundamental unfairness. The problem is also a practical one: There is simply not enough time for a meaningful Senate process, and a confirmation without such a process erodes yet one more key piece of our system of checks and balances, which is, at its core, what makes the American government function.
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The Constitution gives the Senate the power and responsibility of “advice and consent” over the president’s nominations to the Supreme Court. Justices serve for life, and once they’re in place, Congress has no realistic way to serve as a check on them. Congress has also in recent years stood by as its avenues to check the president’s power have been eroded. Confirmation of a justice is one of the few remaining meaningful checks Congress has on the other branches of government, and it is well on its way to throwing that check away.
As a counsel on the Senate Judiciary Committee from 2005 to 2013, I worked on the Senate’s consideration of five Supreme Court nominations. What I saw was a rigorous process for vetting nominees that developed over decades and that both parties rightly insisted on. It is a process that has often been criticized and that has not always worked as intended, but at base it has guaranteed that senators do not vote on lifetime appointments to one of the most important positions in American life without a thorough basis on which to judge whether a nominee’s background, views, and character make them an appropriate choice for the Supreme Court.
If the idea were simply for the president to get his pick without any check, the Framers would not have included the constitutional provision giving the power of advice and consent to the Senate. It is a real responsibility, and it should be done right. If there is not time to do it right, it should not be done at all.
The process has not been and cannot be a quick one. It has included a careful examination of just about everything a potential justice has written and said. The Senate has been provided with judicial opinions, writings, and press appearances by a nominee, as well as complete sets, with limited redactions, of the nominee’s papers from any previous executive-branch service. Senators and staff on both sides of the aisle have pored through every page of that often-massive record, which could contain memos about key executive-power issues, judicial decisions on constitutional rights, or provocative opinion pieces.
The process has included a thorough FBI background investigation with a chance for senators and staff to review it and follow up on any issues raised. Brett Kavanaugh’s confirmation showed that the FBI review itself can sometimes be rushed or overly restricted, which reduces its usefulness and shows the need to go more slowly and methodically, not to speed up the process further. The FBI investigation has been an important part of ensuring that a nominee is suitable for a lifetime appointment to a court that each year decides cases affecting the rights and responsibilities of millions of Americans. Almost all senators have in the past reviewed the FBI file, and in my experience it was not taken lightly.
The vetting process has included the opportunity for senators to have private conversations with the nominee, which often feature prominently in senators’ decision-making process. It has included the chance to ask the nominee questions publicly at a hearing, followed up by extensive written questions.
[Bob Bauer: Six ways to fix the Supreme Court confirmation process]
The process didn’t end there. Senators and staff would review a nominee’s finances and past work experience; they would think through potential conflicts of interest. During investigations and hearings, they would dive into unique issues that arose from a nominee’s background. They would hear from witnesses with personal knowledge of the nominee or with deep expertise or a personal stake in important issues the nominee might consider as a justice. They would discuss and debate extensively.
This process led nominees such as Harriet Miers and Abe Fortas to withdraw; it led to the defeat of Robert Bork’s nomination; it led to painful but important discussions about the nominations of Clarence Thomas and Kavanaugh. It led to overwhelming support for past nominees.
This has previously been a serious process, and it should be one now. It is important, and it rightly takes time.
Only if the Senate performs a genuine, thorough review of the president’s nominee for a lifetime appointment to the highest court in the land, though, is this key piece of our system of checks and balances meaningful. There are no do-overs, and Amy Coney Barrett could be on the Court for many decades. In that time, she could overturn a century’s worth of jurisprudence and set a century’s worth of precedent. The Senate has a chance to make an independent judgment and put its imprimatur on a decision that could affect the rights of millions of Americans and the balance of power in the American government for years to come.
Some senators have already signaled their intention to dispense with any serious vetting process. Senate Judiciary Committee Chair Lindsey Graham said last week that all committee Republicans will vote for the president’s nominee—without even waiting to find out who that nominee was, let alone meaningfully reviewing that person.
There is quite clearly not time to implement the Senate’s review process correctly before the election. The length of time between now and Election Day is shorter than the time it took any nominee to be confirmed in almost four decades. The average time in recent decades has been almost twice what remains now. Those nominees confirmed more quickly decades ago were noncontroversial and were put forth at times when they had the Senate’s full attention.
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There is simply no way to do all that the Senate must do to make this a legitimate process before November 3—not to mention that senators will also be campaigning for reelection during this time and will be unable to give their full attention to the process. After the election, we will know whom the voters want as president and as senators; those chosen will then have ample time to fulfill their constitutional responsibilities and confirm a qualified justice.
Pushing this nomination through without the Senate taking the time and making the effort to serve as a meaningful check on the other branches of government will be the forfeiture of one more crucial check on tyranny, and it will be one more step toward a system of government that no longer looks like a democracy at all.
