The Best Defense of Justice Amy Coney Barrett: No One Else Could Have Been Confirmed To Replace RBG Before The Election
Senator Mitch McConnell is one of the most important Americans of the twenty-first Century. But for his leadership, I am reasonably confident that President Obama would have been able to fill Justice Scalia’s seat. And had Donald Trump not been able to run on filling that vacancy, I am reasonably confident that Hillary Clinton would have prevailed. And then Clinton would have promptly replaced Justice Ginsburg, and maybe even Justices Kennedy or Sotomayor. Our country would look very different if Clinton served for two terms with a 5-4 or a 6-3 Supreme Court majority behind her.
Back to reality. Justice Gorsuch is sitting in Justice Scalia’s seat. Justices Kavanaugh and Barrett replaced Justices Kennedy and Ginsburg. President Trump prevailed in 2016 and in 2024. And the Court’s usually-conservative majority will likely endure for a generation. And Senator McConnell can take a lot of that credit.
That background brings me to an important essay by Mike Fragoso, who served as McConnell’s Chief Counsel, after serving as Chief Counsel on the Senate Judiciary Committee. Fragoso, who recently joined the EPPC, is one of the most astute observers about the judiciary. I’ve long admired his work. Moreover, he brings inside insights from his experience.
Fragoso’s latest piece is titled “In Defense of Amy Coney Barrett: Why She Was Nominated to the Supreme Court.” The subtitle is “Republicans couldn’t have filled the seat without Justice Barrett. Mitch McConnell knew this, and for that reason insisted that she needed to be the nominee.” Fragoso makes several important points.
First, Fragoso argues that Trump had to pick a woman to replace Justice Ginsburg:
The first issue was defensive politics, which dictated that the pick needed to be a woman. As a political matter it would have been untenable to replace Justice Ginsburg with a man. With an election mere months away, and college-educated women being a reliable and increasingly progressive voting bloc, subjecting them to the indignity of replacing “the Notorious RBG” with a man would have further radicalized them. This was a political reality that President Trump had long understood—he was, after all, widely reported to have wanted a woman available to replace Ginsburg in the event a vacancy arose during his presidency. . . .
This isn’t what some of Barrett’s critics call—ridiculously—”DEI”; it’s politics. Barrett was a highly attractive candidate to a particular, important constituency of the Republican coalition—religious women—who were ready and willing to make their voices heard to wavering senators.
I agree with Fragoso that the nominee had to be a woman. This sort of preference is not new. President Reagan pledged to nominate a woman to the Supreme Court, and his nominee was Sandra Day O’Connor. After John Roberts’s nomination was elevated to the Chief Justice seat, President George W. Bush committed to nominate a woman to replace Justice O’Connor, and he selected Harriet Miers. President Biden committed to nominating a black woman for the Supreme Court, and he nominated Judge Ketanji Brown Jackson. In the old days, there was a Supreme Court seat reserved for a Catholic. And even earlier, seats were reserved for northerners and southerners. I see nothing novel about a President making politics calculations, broadly defined, when making a Supreme Court nomination.
I also agree, as a practical point, that Trump had to select a woman to replace RBG in 2020. It is no surprise that the only two nominees discussed were Barrett and Judge Barbara Lagoa of the 11th Circuit. Judge Neomi Rao was apparently not part of that conversation–a topic for another time.
Optics matter for Supreme Court nominees–especially for President Trump. Trump repeatedly boasted that Neil Gorsuch came out of “central casting.” (Trump never said that about Kavanaugh.) Barrett is photogenic, charismatic, and would appeal to a wide swath of the conservative base shortly before th
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