As part of their preliminary attacks on potential Supreme Court nominee Judge Amy Coney Barrett, liberals have been pushing an old clip from 2016 to suggest that after Antonin Scalia’s death, she advocated against replacing him during an election year.
In the shorter version of the clip from an appearance on CBS, Barrett can be heard saying that replacing conservative Scalia could “dramatically flip the balance of power.”
The media, predictably, is taking this out of context to set up a hypocrisy charge in case she is nominated.
Newsweek ran a piece headlined, “In resurfaced clip, Amy Coney Barrett says it would’ve been inappropriate for Obama to nominate SCOTUS judge who could ‘flip balance of power.'” Business Insider wrote, “Amy Coney Barrett previously frowned on judges who could ‘dramatically flip the balance of power’ on the Supreme Court.” The Week ran a post with the headline, “Watch Amy Coney Barrett argue in 2016 against replacing Supreme Court justices with those of opposite ideologies.”
In reality, Barrett said nothing of the sort. Viewed in its full context, Barrett, then a professor at Notre Dame Law School, was merely explaining the historical precedents for election-year nominations and what was unique about the situation in 2016. At no point did she say it would be inappropriate or wrong. In fact, she explicitly explains twice that there is no clear precedent and that the issue could be argued both ways.
For much of the interview, Barrett was simply discussing the legacy of Scalia — she was one of his former law clerks.
She was then asked about comments Sen. Marco Rubio made against confirmations during a presidential election year.
Barrett explained that there were six cases of such confirmations during the 20th century but said of the historical record, “I don’t think it establishes a rule for either side in the debate.”
She noted that of the six cases, five came when the same party controlled both the White House and Senate, which meant that there was no strong disagreement.
She then pointed out that the one exception was Anthony Kennedy being confirmed in 1988.
“The arguments will be that that situation was distinguishable,” she said, clearly signaling that what follows is her characterizing the arguments rather than articulating her own position.
She went on to explain that, “The vacancy did not arise in the presidential election year. It arose the year before, in June, when [Justice Lewis] Powell retired. And Justice Kennedy was nominated in November of the prior year. Moreover, he was nominated after [Robert] Bork’s nomination had failed and [Douglas] Ginsburg withdrew his nomination. So the wrangling for the spot, the conversation about the spot, the existence of the spot, had been in play for a long time before that.”
Only then did she get to the part that is now being stripped of all context: “Kennedy is a moderate Republican, and he replaced a moderate Republican, Powell. We’re talking about Justice Scalia, the staunchest conservative on the Court, and we’re talking about him being replaced by someone who could dramatically flip the balance of power on the Court. It’s not a lateral move.”
She also observed that Supreme Court fights have become significantly more contentious in the intervening decades.
As she wrapped up, she again made it abundantly clear that she wasn’t taking a position one way or another on what ought to happen and that neither side is clearly in the right.
“In sum, the president has the power to nominate, and the Senate has the power to act or not, and I don’t think either one of them can claim that there’s a rule governing one way or the other,” she said.
