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Republicans aren't being honest about why Amy Coney Barrett has their support. They can't be.

The rulings they hope — and fully expect — Trump's Supreme Court nominee to make are so unpopular they have to pretend they don't know she'll make them.
Image: Senators Meet With Supreme Court Nominee Amy Coney Barrett
Judge Amy Coney Barrett meets with Senate Majority Leader Mitch McConnell on Capitol Hill on Sept. 29, 2020.Susan Walsh / Pool via Getty Images
By Scott Lemieux

Senate Majority Leader Mitch McConnell has repeatedly suggested that the Senate will forgo passing an economic stimulus package in order to focus on the confirmation of Judge Amy Coney Barrett to the Supreme Court. Superficially, this makes little political sense: The public — Democrats, independents and some Republicans alike — would overwhelmingly prefer that the Senate focus on improving the economy and their response to Covid-19 rather than ramming through another arch-conservative judge.

So given the clear importance that McConnell and Trump have placed on confirming Barrett before the election over all other political priorities, one might then expect Republicans to shout to the rooftops the conservative constitutional positions Barrett is being put onto the court to advance. Instead, the GOP is largely denying that she holds or will advance Republican views on constitutional issues at all.

This reflects an obvious truth: Barrett’s views on many major issues are enormously unpopular and Republicans know it.

The Oct. 7 vice presidential debate was a case in point: When asked about Trump’s latest Supreme Court nominee, Pence didn’t talk about Barrett’s rulings, but rather her “sizable American family” and pre-emptively attacked imaginary future Democratic criticisms of her religious faith. With respect to the two issues most likely to stoke controversy at her confirmation hearing — the possibility that she would vote to overrule Roe v. Wade or strike down the Affordable Care Act — he claimed that “I would never presume how Judge Amy Coney Barrett would rule on the Supreme Court of the United States.”

And when asked what states should do if Roe is overruled, Pence immediately launched into a rant about Trump’s assassination of Iranian Gen. Qassem Soleimani — an answer that speaks for itself, especially coming from an avowedly pro-life evangelical.

Pence is hardly alone in his unwillingness to address Barrett’s presumed judicial rulings on health care or abortion.

McConnell, for instance, recently made a remarkable statement when asked about Barrett striking down the ACA. “This mother of seven, including multiple children who were born or adopted facing pre-existing-condition medical challenges, is just itching to block families like hers from accessing medical care? What a joke.”

Let’s unpack that comment: The only reason that people with pre-existing conditions have access to insurance coverage of said pre-existing conditions is the “guaranteed issue” provisions of the ACA, which prevent insurers from discriminating against them. Senate Republicans provided zero votes for the passage of the act and spent most of 2017 trying to repeal it, falling short by a single vote.

The Trump administration is currently supporting the lawsuit that the Supreme Court will hear on Nov. 10 — which would result in the entire Affordable Care Act being struck down (including the pre-existing condition provision) if the administration’s position is accepted. Essentially, McConnell is saying that Barrett could not possibly be so monstrous as to support the opinion of virtually all elite Republicans, including the president who is appointing her. What a joke.

When it comes to Roe v. Wade, Republicans are also pleading ignorance and innocence with a surprisingly straight face, despite the fact that having judges willing to overturn Roe is one of the major reasons for the fanatical Republican efforts to take over the federal courts. Pro-life Sen. Joni Ernst, R-Iowa — embroiled in a difficult fight for re-election — asserted at a recent debate that there was a “very minimal chance” that the court will overrule Roe even with Barrett confirmed.

And conservative Stanford University law professor — and former federal judge — Michael McConnell also recently claimed that the persistence of Roe, despite a court that has long been supposedly controlled by Republicans, shows that there is little chance that it will be overruled.

These are all bad faith assurances: the idea that the nominee who Republicans are risking their own electoral fortunes to ram onto the court does not share Republicans’ views on critical constitutional questions is almost certainly false. She is on the record saying that the court’s decision to mostly uphold the Affordable Care Act in NFIB v. Sebelius is inconsistent with the “originalist” constitutional theory she advocates; she signed a letter urging the court to overrule Roe v. Wade, calling the court’s landmark ruling “barbaric.” And — contrary to Michael McConnell’s aforementioned argument — the survival of Roe was the result of a highly contingent series of legal flukes, not an inexorable law of nature.

It is virtually inconceivable that a 6-3 conservative Supreme Court will vote to strike down any state regulation or de facto ban on abortion it is presented. It is only perhaps true that the Roberts Court might prefer to slowly strangle a woman’s right to choose rather than quickly put a stake through the heart of Roe.

But all of this evidence of prevarication brings us to the core of the issue: Republicans are lying about Barrett’s views on critical issues because they know how to read a public opinion poll.

The American public has generally supported upholding Roe by 2-to-1 margins for decades, and a 2019 Pew Research survey found approval for Roe at its highest level ever: Seventy percent of Americans favored Roe and only 28 percent wanted it to be overruled. And now that people know what the Affordable Care Act (also derided by Republicans as "Obamacare") entails, a majority of the public also supports the ACA — and doesn’t support the Trump administration’s efforts to get it struck down by unelected judges.

The disingenuous shell game, however, that Republicans are playing with Barrett’s record and what they assume her pattern of rulings will be has a long history.

Republicans are still mad that Sen.Ted Kennedy’s, D-Mass., gave a floor speech opposing President Ronald Reagan’s Supreme Court nominee Robert Bork, tanking his nomination, and they have used that speech to justify virtually any envelope-pushing, disingenuous action on Supreme Court nominations since.

But what is not said often enough about Kennedy’s speech is that nothing in it was inaccurate: Bork had, in fact, publicly opposed the passage of the Civil Rights Act of 1964, argued that the First Amendment should not apply to literary works, harshly criticized the Warren Court’s criminal procedure opinions, and argued that Roe v. Wade was wrongly decided. Bork was never “borked,” unless we hold the meaning of that term to be “hoisted on his own petard.”

From Bork to Barrett, though, the Republican argument has been that to accurately describe a Republican nominee’s views on constitutional issues in a public forum is a uncivil dirty trick — and given how extraordinarily unpopular these views are, in a sense, they’re not politically in the wrong to try to frame it that way. But that constant disingenuousness may also help to explain why American voters want the winner of the next presidential election to pick Ruth Bader Ginsburg’s replacement, rather than accepting that Trump should be able to go ahead with a last-minute, lame-duck confirmation of a nominee about whom Republicans are hardly being honest.

Scott Lemieux

Scott Lemieux is a teaching professor in the political science department at the University of Washington. He is a co-author of "Judicial Review and Democratic Theory" and contributes regularly to The Week, Reuters and The New Republic.