3 Reasons Why The Amy Coney Barrett Nomination Could Backfire For Republicans

As expected, on Saturday afternoon President Trump nominated Federal Circuit Court Judge Amy Coney Barrett to fill the Supreme Court seat of the late Justice Ruth Bader Ginsburg. The nomination is setting off an unprecedented election year Senate battle and could reshape the Supreme Court for decades to come.

But will it spark a Republican backlash?

In announcing the nomination at the White House, President Trump appeared to be descriptive as well as almost directive in his praise of Barrett. “Amy Coney Barrett will decide cases based on the text of the Constitution as written,” Trump said. “As Amy has said, being a judge takes courage. You are not there to decide cases as you may prefer. You are there to do your duty and to follow the law, wherever it may take you.” For their part, Barrett’s supporters hope that the nominee, and the Court, follows a path towards a more right-leaning court.

Conservatives are anticipating a swift confirmation of Barrett despite strenuous Democratic objections, yet the question remains: will the nomination and possible confirmation of the deeply conservative judge backfire on Trump and congressional Republicans? There are three reasons to believe why it just might.

Moderates may view Barrett, and her nomination, as extremist. While much has been made of Judge Barrett’s Catholic faith, it’s not her religion that makes her nomination troubling to many moderates: it is abortion rights. Barrett has been on record as stating that she believes Roe v. Wade will stand as precedent, but she has not been shy about expressing her belief that restrictions on abortion could change. She has also referred to stare decisis, or the practice of letting precedent stand as settled law, as a “soft rule” of the Court. 

Other perspectives of Barrett are also likely to challenge more moderate perspectives, including on issues of healthcare, voting rights, and the power of the government to regulate business. Depending on if, and how, Barrett’s critics are able to paint her as a judicial extremist, moderates may not only sour on Barrett’s nomination (which, as explained below, could have major consequences) but also further shape their perception of Republicans as a party seeking to impose extremist, and even anti-woman, perspectives on America.

The nomination and swift confirmation cost could Trump and Senate Republicans the election. Depending on the speed by which the Republicans push through the confirmation process, it is possible that a vote on Barrett’s nomination could come as early as late October. If so, two election-related factors come into play. First, much, if not all of the campaigns for senators facing reelection will be impacted by the confirmation process. Logistically, senators will need to come off the campaign trails to be available for in-person procedural votes in Washington, no doubt taking precious time away from their reelection fights. But the confirmation fight also will put several moderate Republicans senators from battleground states in the hot seat, particularly with respect to Barrett’s views on abortion.

In addition to the politics of the fight, there is also the impact on voter enthusiasm. While both Republicans and Democrats are expected to be fiercely engaged in confirmation fight, the question of which side benefits in driving voter turnout is a real one. Depending on the timing of the confirmation, it is possible that anti-Trump critics will be even more mobilized to vote on November 3^rd, potentially costing the Republicans both the White House and the Senate.

The Democrats, backed by a majority of Americans, could pack the court and enact other judicial reforms.  The third, and perhaps biggest backfire of the nomination, could be that Democrats, infuriated by what they see as the hypocrisy of the Republican’s confirmation of a Supreme Court nominee in the final days of an election campaign, decide to declare all-out war on the Court should they take both the White House and the Senate in November. Issues such as term limits for judges, adding Justices to the Supreme Court, and considering impeachment of Justices all appear to be on the table.

While right now all of those measure seem extreme, if the Democrats have the legislative power to execute such maneuvers, they might find themselves backed moderates who fear that a more conservative Court will fundamentally change the nature of the country. By refusing to take potential judicial reforms off the table, Democrats are also foreshadowing a potential legislative battle, and Republican backlash following the election would make the confirmation look like child’s play.

Of course, maybe none of those scenarios will play out – it is also possible that Republicans are able to confirm Barrett and then win both the White House and keep the Senate based on a wave of enthusiasm for the judicial victory. But either way, the Barrett confirmation fight is one of the biggest gambles of Senate Majority Leader Mitch McConnell’s career and Trump’s presidency. Win, lose or draw the fight over Judge Barrett will change and the nation for decades to come. The only question is…

How?