A divided Senate on Monday is expected to confirm Judge Amy Coney Barrett to a lifetime term on the Supreme Court, capping a bitter fight over the partisan make-up of the judicial body, which has taken place in the middle of an unusually explosive presidential election.
The 48-year-old judge’s elevation will come just eight days before the final votes are cast in the contest between President Donald Trump and Democratic nominee Joe Biden. It will provide conservatives with a 6-3 majority on the high court, including three Trump picks.
The vote is expected for around 7:25 p.m. ET.
Barrett’s confirmation, which is virtually assured given the GOP hold on the Senate, is expected to shift the ideological balance of the court to the right on issues like gun rights, abortion, business and the environment.
In the coming months, the justices will also decide the fate of the Affordable Care Act, known as Obamacare, through which tens of millions of Americans have access to their health insurance. The case over the law will be argued on Nov. 10, one week after the election.
Raising the stakes, both Democrats and Republicans have suggested the court may be called to decide the election itself, as it did in the 2000 race between President George Bush and Democrat Al Gore.
Experts have said the possibility of the election being decide in court is elevated this year because of a flood of litigation related to voting rule changes that came about as a result of the spreading Covid-19 pandemic.
The possibility of a contested election has overshadowed Barrett’s confirmation process.
Trump repeatedly pressed for Barrett to be confirmed in time to vote on any such cases, prompting Democrats to demand her recusal.
During two days of questioning before the Senate Judiciary Committee earlier this month, Barrett agreed to carefully weigh whether her participation in an election case would be inappropriate, but declined to commit to abstaining.
The battle over Barrett’s nomination was sparked last month after the death of Justice Ruth Bader Ginsburg, a liberal icon who served on the Supreme Court for 27 years.
Replacing Ginsburg with Barrett represents the most stark ideological shift on the court since the liberal Justice Thurgood Marshall was replaced by conservative Justice Clarence Thomas in 1991.
Trump and his allies in Congress, including Senate Majority Leader Mitch McConnell, R-Ky., immediately moved to replace Ginsburg before Election Day. Biden and Democats in Congress argued the process was a sham, and pressed for Ginsburg’s replacement to be named by the winner of next week’s election.
Senate Minority Leader Chuck Schumer, D-N.Y., and other pointed to McConnell’s 2016 refusal to even hold hearings for President Barack Obama’s nominee Merrick Garland during an election year.
Barrett’s confirmation is the first to come so close to a presidential election. The vote is scheduled to take place after a historic number of early votes have already been cast. More than 58 million Americans have already voted, as people around the country flock to early voting as a result of coronavirus.
Ginsburg herself weighed in from the grave. In an unusual dying statement, the 87-year-old said her “most fervent wish is that I will not be replaced until a new president is installed.”
Republicans praised Ginsburg’s career but pressed on with Barrett’s confirmation process.
“A lot of what we’ve done over the last four years will be undone sooner or later by the next election,” the Kentucky Republican said on Sunday night from the Senate floor. “They won’t be able to do much about this for a long time to come.”
Barrett has served as a professor at Notre Dame Law School since 2002 and sat on the 7th U.S. Circuit Court of Appeals for three years. She clerked early in her career for Justice Antonin Scalia, a conservative hero, and has said that she shares his judicial philosophy.
Throughout her marathon hearings earlier this month, Barrett provided few direct answers, but reaffirmed her conservative mode of judicial interpretation. She defended her independence from both the White House and Congress, and said she would approach cases, including the dispute over Obamacare, with an open mind, if confirmed.
Democrats used the hearings to focus the attention of voters on health care, arguing that Barrett’s confirmation will doom the Affordable Care Act. Republicans, on the other hand, touted Barrett’s legal credentials and her personal background as a Catholic mother of seven.
“This is the first time in American history that we’ve nominated a woman who is unashamedly pro-life and embraces her faith without apology,” Judiciary Committee Chairman, Sen. Lindsey Graham, R-S.C., said.
Progressives criticized Democrats on the committee for their handling of the hearings, with some calling for Sen. Dianne Feinstein of California, the ranking member, to leave her post.
Democrats cut down their participation in the nomination process after that, boycotting the committee’s vote on Thursday to approve Barrett out of committee. Barrett passed a key procedural vote from the full Senate on Sunday in a 51-48 vote in which no Democrat voted in her favor.
Two Republicans sided with Democrats on Sunday, Sens. Lisa Murkowski of Alaska and Susan Collins of Maine.
Murkowski and Collins have both said they oppose the seating of a new justice before Election Day.
On Monday, however, Murkowski is expected to vote to confirm Barrett, after her largely symbolic vote the day before.
“I believe that the only way to put us back on the path of appropriate consideration of judicial nominees is to evaluate Judge Barrett as we would want to be judged. On the merits of her qualifications,” Murkowski said on Saturday.
“And we do that when that final question comes before us. And when it does, I will be a yes,” she said.
Collins, who is facing a tough reelection battle that remains focused on her 2018 support of Justice Brett Kavanaugh, Trump’s second nominee, is expected to vote against Barrett’s confirmation.
