On September 26, 2020, President Donald Trump announced the nomination of Amy Coney Barrett to the position of Associate Justice of the Supreme Court of the United States to fill in the vacancy left by the death of Ruth Bader Ginsburg. At the time of her nomination, Barrett was a Judge of the United States Court of Appeals for the Seventh Circuit in Chicago, Illinois. The Senate received word from the president (when a Supreme Court nomination becomes official) on September 29.
On October 26, the Senate voted to confirm Barrett's nomination to the Supreme Court, with 52 of 53 Republicans voting in favor, while Susan Collins and all 47 Democrats voted against; Barrett took the judicial oath on October 27. Democrats rebuked Republicans and accused them of hypocrisy, stating that they had violated their own interpretation of the Biden rule, which they set in 2016 when they refused to consider then-President Obama's nomination of Merrick Garland more than nine months before the end of his term. The 35 days between the nomination and the 2020 presidential election marked the shortest period of time between a nomination to the Supreme Court and a presidential election in U.S. history.
Background
Under the Appointments Clause (Article II, Section 2) of the United States Constitution, judicial appointments are made by the president of the United States with the Advice and Consent of the United States Senate. Ginsburg was nominated to the Supreme Court by Bill Clinton on June 14, 1993, to fill the vacancy caused by the retirement of Byron White. The confirmation process was relatively short at six weeks, and she was approved by the Senate by a 96–3 vote on August 3, 1993. Ginsburg's tenure on the court led to her being described as one of the most important and iconic Supreme Court justices to liberals since Thurgood Marshall, and she was considered the left's counterbalance to Antonin Scalia on the right.
Death of Ruth Bader Ginsburg
Ginsburg was diagnosed with early-stage pancreatic cancer in 2009. Tumors were also found on her lungs when she sought medical care for broken ribs after a fall in late 2018. Ginsburg's declining health and advanced age raised the prospect of another possible vacancy and subsequent nomination during a presidential election year. On September 18, 2020, Ginsburg died at the age of 87, from complications of metastatic pancreatic cancer. Her death during a presidential election year left eight Supreme Court justices: three were nominated by Democratic presidents, and five by Republicans. Prior to her death, she dictated in a statement through her granddaughter Clara Spera that "my most fervent wish is that I will not be replaced until a new president is installed."
Ginsburg's death 46 days prior to the election was the second-closest of a Supreme Court justice to a presidential election in United States history; only Roger B. Taney's death in October 1864 was closer. The latest successful Supreme Court confirmation in an election year before 2020 was when Benjamin Cardozo was nominated by Republican president Herbert Hoover on February 15, 1932. Cardozo was confirmed by the Republican-controlled Senate ten days later, on February 25, 1932.
Nomination Potential candidates
During his presidential candidacy in 2016, Trump released a list of jurists he would consider to fill a Supreme Court vacancy, including his first nominee, Neil Gorsuch. An updated short list was released in November 2017. Among the high-profile potential nominees from the list were Amy Coney Barrett, Britt Grant, Amul Thapar and David Stras, who were all elevated to the courts of appeals by President Trump. In September 2020, President Trump released another list of 20 possible appointees were a vacancy to arise, including Republican senators Tom Cotton (Arkansas), Ted Cruz (Texas), and Josh Hawley (Missouri); of the three senators, Cruz and Hawley later indicated they would decline a nomination.
On September 19, 2020, President Trump told supporters at a rally in Fayetteville, North Carolina, "I will be putting forth a nominee next week – it will be a woman". By September 21, Trump said that his list had been narrowed to just five names, with a final nomination to be made on September 24 or 25. As of September 2020, President Trump's complete list of Supreme Court candidates contained 44 names, of whom 12 were women. September 22 news reports identified Barrett, Barbara Lagoa, Joan Larsen, Allison Jones Rushing, and Kate Comerford Todd as the top contenders, with Barrett the frontrunner.
Rose Garden ceremony
On September 26, Trump announced his nomination of Amy Coney Barrett in a ceremony in the White House Rose Garden before an audience of top Washington officials, other dignitaries, and family members. More than 150 people attended; they were told they did not need to wear masks if they had tested negative that day. Chairs for the outdoor ceremony were placed side by side, and there were two crowded indoor receptions. At least 18 attendees tested positive for the coronavirus in the following week: the president, the first lady, then-current Counselor to the President Hope Hicks, Senators Thom Tillis and Mike Lee, Notre Dame president John I. Jenkins, former Counselor to the President Kellyanne Conway, and former New Jersey Governor Chris Christie. Contact tracing expert Susie Welty said, "There's probably several super spreader events mixed up in this one scenario." Barrett was present at the event, but was reported to have tested positive for COVID-19 in the summer of 2020 and since recovered.
Amy Coney Barrett
Amy Coney Barrett is an American attorney, jurist, and academic who served as a circuit judge on the United States Court of Appeals for the Seventh Circuit. Before and while serving on the federal bench, she has been a professor of law at Notre Dame Law School, where she has taught civil procedure, constitutional law, and statutory interpretation. She is a textualist, a proponent of the idea that statutes should be interpreted literally, without considering the legislative history and underlying purpose of the law, and an originalist, a proponent of the idea that the Constitution should be interpreted as perceived at the time of enactment. She had been on Trump's list of potential Supreme Court nominees since soon after her 2017 Seventh Circuit bench confirmation hearing. While not a formal endorsement, the American Bar Association's Standing Committee on the Federal Judiciary rated Coney Barrett "Well Qualified" to serve on the Supreme Court, although a minority voted to rate her merely "qualified".
Political responses
Republican Party
U.S. Senate Majority Leader Mitch McConnell vowed to bring a Trump nominee to replace Ginsburg to a confirmation vote in the Senate. He distinguished the refusal of the Senate to allow a vote for Garland by stating that the Republicans successfully retaining control of the Senate in the 2018 elections gave them a mandate to fill a vacancy that Obama, in his last year as a "lame-duck president", did not possess:
Two Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska, said the Senate should not vote on Barrett's nomination until after the presidential election. Collins said, "In fairness to the American people ... the decision on a lifetime appointment to the Supreme Court should be made by the President who is elected on November 3rd." Senator Mitt Romney said that in "the circumstance where a nominee of a president is from a different party than the Senate then, more often than not, the Senate does not confirm. So the Garland decision was consistent with that. On the other hand, when there's a nominee of a party that is in the same party as the Senate, then typically they do confirm." Trump said that the Republican Party has an "obligation" to replace Ginsburg as soon as possible, and that previous vacancies in an election year all resulted in a timely nomination by the incumbent.
Barrett with Republican senators, September 29–October 1, 2020
Democratic Party
Immediately after Ginsburg's death was announced, Senate Minority Leader Chuck Schumer tweeted: "The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president", echoing verbatim a quote McConnell made in 2016 regarding the vacancy left by Scalia's death. Massachusetts senator Ed Markey stated that, if McConnell violated the precedent set by the Garland nomination and held a confirmation vote, then Democrats should consider "expanding the Supreme Court"; the number of Justices has been set in law at nine since 1869, and since then only Franklin D. Roosevelt has made a serious attempt to increase the number of justices on the court (his "court-packing plan", intended to ensure that his New Deal economic reforms would be ruled constitutional).
In a conference call with the Senate Democratic Caucus on September 19, Schumer said that "nothing was off the table" if the Republicans began the process of filling the vacant seat and specifically mentioned an increase in court membership and complete abolition of the Senate filibuster. After Barrett was nominated, Schumer announced his strong opposition, saying that she "seems to be intent on undoing all the things that Ginsburg did," that her confirmation would put at risk "just about everything that America believes in and stands for when it comes to issues like health care, labor rights and LGBTQ rights and women's rights," and that "A vote for Amy Coney Barrett is a dagger aimed at the heart of the health care protections Americans so desperately need and want". Schumer scoffed at Leader McConnell's assertion that such claims are "hysterical".
Schumer said he would not meet with Barrett, primarily because "the whole [nomination] process has been illegitimate." Additional Democratic party senators who have said that they would not meet with her include Jeff Merkley, Bob Casey Jr., Richard Blumenthal, and Mazie Hirono.