The Barrett Rule: How Democratic Members Are Creating a New and Dangerous Standard for Confirmations…

The confirmation hearing of Judge Amy Coney Barrett could easily have been mistaken for the sentencing hearing for John Wayne Gacy. Surrounding Barrett were huge pictures of sick individuals. One would think that Barrett was being confronted with the faces of her victims. In reality, the pictures perfectly captured a far more important message. Senators had finally broken free from any pretense of principle in reviewing the qualifications of a nominee. Indeed, many are about to create a new rule, the Barrett Rule, allowing conditional confirmation voting. The pictures were meant to pressure Barrett to either satisfy senators that she would vote against an Affordable Care Act challenge or they would vote against her confirmation.

There has long been a debate over the legitimate grounds for opposing a Supreme Court nominee. While senators can vote under the Constitution for good, bad or no reason at all, most have sought to justify their votes on some principled basis. For most of our history, senators followed the rule that disagreement with a nominee’s jurisprudential views was not a basis to vote against their confirmation. A president was viewed as constitutionally entitled to appoint jurists reflecting their own legal viewpoint and the primary basis for voting against a nominee was on the lack of qualifications or some disqualifying personal or professional controversy. It was a rule of senatorial deference that controlled the majority of nominations in our history.

Voting against nominees based on their expected votes

Members began to chafe at the limitations of this principle in the second half of the twentieth century. With abortion, desegregation and other hot button issues, confirmations became politics by another means. With every year, senators became more open about voting against nominees solely on the basis for their expected votes. This trend was accelerated in October 1987 in the confirmation hearing of Judge Robert Bork presided over by a senator from Delaware named Joe Biden. Bork was labeled “outside of the mainstream” of legal thought and rejected in a process that is now called “Borking.”…