As always, October in Washington, D.C., and its surrounding suburbs was stunningly beautiful, with perfect weather and beautiful foliage. But that was the only thing that was familiar and normal. In Washington, as in many of the world’s great cities, an eerie, quiet calm continued seven months after the arrival of the novel coronavirus. A small number of people could be found on the streets, sometimes with their partners, often with their dogs. The Metrorail system was operating but carrying only about 10 percent of its normal traffic. Riders often found they had a subway car virtually to themselves. The glass-box office buildings on K Street were deserted, as lawyers, lobbyists, and consultants worked virtually from their homes. People donned masks, maintained their social distance, washed their hands, and followed reports of the extraordinarily rapid development of the vaccines, on pace to be a scientific miracle. In the Washington metro area, like the rest of America, people waited for the vaccine and watched for the feared second wave of COVID-19 cases.
The quiet in the streets was deceptive. Millions of Americans were suffering disease and death from COVID, as well as profound economic dislocation as the virus and the shutdown rocked industry after industry. And there was boiling anger on both sides of the political debate and the racial divide. There had never been any doubt that the presidential election would be contested with fierce intensity; Trump’s disruptive presidency had sparked resistance from the outset.
Despite the naïve hopes of Susan Collins and Lamar Alexander, Trump learned no lessons from his impeachment, other than concluding that he could do anything with impunity because of the protection provided by the Republicans in the US Senate. And as the year 2020 progressed, Trump’s actions took on an increasingly authoritarian cast. On May 25, Minneapolis police officers killed a black man in their custody, George Floyd, when one officer kneeled on his neck for an excruciating nine minutes while Floyd pleaded for his life and three other officers stood by. A bystander recorded the killing on her phone, and circulation of the video led to massive protests against police brutality and systematic racism all over the country. Trump, rather than acting as a peacemaker, imitated authoritarian governments, sending federal forces—sometimes in unmarked vehicles and without identification—to disrupt protests and yank protestors off the street. Those actions came to a head on June 1, when Attorney General William Barr called in military forces to clear protestors from Pennsylvania Avenue and Lafayette Park so that Trump could cross the street from the White House and pose with a Bible in front of St. John’s Episcopal Church. Muriel Bowser, the mayor of the District of Columbia, was outraged; she struck back by painting the words “Black Lives Matter” in ten-foot-high yellow letters on Sixteenth Street, near the site of the confrontation.
As protest activity waned in D.C., an uneasy calm returned. In contrast to most of the city, the Capitol in October was a beehive of activity, particularly around Mitch McConnell’s palatial offices. Restrictions on travel made it difficult for McConnell to return to Kentucky to campaign for what looked like an easy reelection, so he devoted his political wiles and formidable energy to things that mattered most to him. Ordinarily, that would mean a single-minded focus on helping other Senate Republican candidates, to ensure that he would retain his position as majority leader. Now, however, that paled in importance compared to the historic opportunity that had been created by the death of Supreme Court justice Ruth Bader Ginsburg on September 18. McConnell was on the verge of realizing the highest priority of the Republican Party and right-wing constitutional movement: locking in a lasting conservative 6–3 majority on the Supreme Court.
Any opening on the Supreme Court was enormously consequential, but nothing could compare to replacing Ruth Bader Ginsburg with a reliable conservative nominated by Donald Trump. Ginsburg had been a formidable liberal jurist, increasingly known for her superb dissents against the 5–4 conservative majority on the Roberts court. She had attained iconic status in recent years, becoming known as “Notorious RBG” (a play on the name of rapper “Notorious B.I.G.”), revered for her intellect and passion and for the indomitable spirit with which she fought several forms of cancer.
Justice Ginsburg desperately wanted to stay alive until a Democratic president was elected and could name her successor. In that fight, she was not able to prevail, passing away at the age of eighty-seven, six weeks before the presidential election.1 Her death was a hammer blow to women and liberals across the United States. Poignantly, Justice Ginsburg, who was Jewish, died just before the first night of Rosh Hashanah, the Jewish new year. Many rabbis across the country who began their Rosh Hashanah services expressing confidence that this new year had to be better than the one just completed may have wanted to correct their statement an hour later with the grim news. The following week, Ginsburg became the first woman to lie in state in the US Capitol, and the first Jewish person to do so.
Five days before her death, Justice Ginsburg had dictated a statement to her granddaughter Clara Spera: “My most fervent wish is that I will not be replaced until a new president is installed.”2 In fact, that was her most futile wish; Mitch McConnell, legendarily unsentimental, must have laughed out loud at that thought. Within hours of the news of Justice Ginsburg’s death, McConnell announced his intention to confirm as her successor a nominee put forward by President Trump. The Republicans were jubilant about the opportunity to confirm a third justice nominated by Trump; they were almost as delighted to be able to change the subject from Trump’s failed handling of the pandemic to a battle over the Supreme Court.
For McConnell, this would be the fourth time in four years that he would get to shape the Supreme Court. In 2016, after the death of Justice Antonin Scalia, he had stepped forward with similar speed to announce that the Senate would not consider any nominee put forward by President Barack Obama because it was a presidential election year; the seat should be left to the next president to fill. This unprecedented act outraged Democrats and left some Senate Republicans uneasy, but McConnell never wavered, and he won his bet when Trump was elected president and nominated Neil Gorsuch to fill the vacancy. Unlike the confirmation battles over Gorsuch and Brett Kavanaugh, replacing Justice Ginsburg was a different case entirely: a great liberal would be replaced by an extreme conservative, and the balance of the court could be dramatically shifted for a generation. Within hours of Justice Ginsburg’s death, McConnell was on the phone with President Trump. “This will be the hardest fight of my life,” the majority leader said. “We have to play this perfectly.”3 According to his former chief of staff, Josh Holmes, McConnell told Trump, “First, I’m going to put out a statement that we’re going to fill the vacancy. Second, you’ve gotta nominate Amy Coney Barrett.”4
Trump needed no prodding; there was never any doubt about who the nominee would be. At one point during the heated Kavanaugh debate two years earlier, Don McGahn, the White House counsel, had said, “If you don’t confirm Kava naugh, you’re going to get Amy Coney Barrett.”5 It was the most ominous threat to Democrats that McGahn could make. After Trump nominated Kava naugh, he told several advisers that he was “saving her [Barrett] for Ginsburg’s seat.”6 She was the nominee who would pose the clearest threat to a full range of constitutional rights that had been protected by a closely balanced Supreme Court.
Amy Coney Barrett had been one of the first wave of judges that Trump had nominated to the federal court of appeals in 2017. She had an appealing personal profile; forty-eight years old, she was the mother of seven school-age children, including one with special needs. Barrett had spent most of her career as a law professor at Notre Dame, where she had been voted professor of the year three times. She was a Midwesterner, a crucial political battleground, and a graduate of Notre Dame Law School, which many people would find a welcome departure for a court monopolized by the graduates of Harvard and Yale Law Schools.7
But what mattered most to Trump and McConnell was that Barrett was a committed originalist, in the tradition of Justice Scalia, for whom she had clerked. She had criticized Chief Justice Roberts for voting to uphold the Affordable Care Act, and she had once signed on to an ad calling for overturning Roe v. Wade and its “barbaric legacy.”8 Of course, Barrett would pay lip service to being a judge, not a legislator, as Roberts himself had described a judge’s role during his own confirmation hearings in 2005: “an umpire, just calling balls and strikes.” And with respect to routine legal issues, Barrett might function that way. But only the most consequential issues reached the Supreme Court, and Barrett was being nominated for her unmistakably clear views on those.
She was forthrightly and fiercely conservative, to the point that her legal philosophy seemed inextricably linked to her deeply felt Catholicism. During Barrett’s confirmation hearings for the Seventh Circuit, Senator Dianne Feinstein observed, “The dogma lives loudly within you.”9 Politically, this was an unfortunate statement, which the Republicans would use their advantage, painting any opposition to Barrett as anti-Catholic. But it was nonetheless true. As Lindsey Graham said candidly, “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.”10 Josh Hawley of Missouri, an extreme conservative who had said he would only vote to confirm a pro-life justice, pronounced himself eminently satisfied with Barrett.11
McConnell was perfectly willing to have the confirmation hearings focus on Barrett’s Catholicism and the abortion issue, since they energized the Republican base, reminding conservative voters of what was at stake in the election. He called the attacks on Barrett’s faith “a disgrace,” saying that the Democrats are “so disconnected from their own country that they treat religious Americans like strange animals in a menagerie.”12 McConnell was preparing to carry out his most audacious act yet; the danger for him was whether several Senate Republicans would rebel against his determination to confirm a Supreme Court justice days before a presidential election that Trump was likely to lose.
The press would blast McConnell for his hypocrisy in ramming through Barrett’s nomination after he had refused to give Merrick Garland a hearing for nine months prior to the 2016 election. McConnell shrugged off the charge of hypocrisy as liberal whining. But he recognized that other members of his caucus had been outspoken on this point. Susan Collins and Lisa Murkowski, whose independence had long been a thorn in McConnell’s side, quickly expressed their view that it was too late in an election year to consider a Supreme Court nominee.13 But McConnell always recognized the possibility of losing their votes; Judge Barrett could still be confirmed if the other Republicans stayed in line.
Amy Coney Barrett’s nomination quickly collided with the terrible realities of this extraordinary year.14 On October 3, President Trump hosted a ceremony in the Rose Garden to announce her nomination, attended by the judge’s family, Republican lawmakers, religious leaders, top Trump allies, and White House officials, in clear conflict with the District of Columbia’s ban on gatherings of more than fifty people. Upon arrival, attendees were given a rapid coronavirus test, and if it was negative, they were told it was safe to remove their masks. Guests were seen shaking hands and hugging, in direct opposition to CDC guidelines. Alex Azar, the secretary of health and human services, fist-bumped without a mask on. Attorney General Bill Barr and Dr. Scott Atlas, a member of the White House coronavirus task force, were seen without masks, shaking hands. At least twelve people, including Senators Mike Lee and Thom Tillis, First Lady Melania Trump, former New Jersey governor Chris Christie, and University of Notre Dame president John Jenkins, contracted COVID-19. It is likely, although not certain, that President Trump himself contracted COVID-19 at this event. Other people in Trump’s orbit tested positive as well.
Dr. Anthony Fauci called the Rose Garden ceremony a “super-spreader event.” Judge Barrett, perhaps immunized because she had already had COVID-19, was unaffected. Also unaffected was Mitch McConnell, who never criticized Trump’s mishandling of the pandemic but always wore a mask and was wise enough to come nowhere near the White House, where masking and social distancing were widely disregarded.15 McConnell’s only concern was whether Senators Tillis and Lee would recover quickly enough to vote on Judge Barrett’s nomination.16
On October 12, Lindsey Graham gaveled the beginning of the Judiciary Committee’s confirmation hearings of Judge Barrett. The nominee’s opening statement focused on her family, including her children and siblings. She reviewed her education and mentioned clerking for Justice Scalia, her mentor, whose judicial philosophy she shared: “A judge must apply the law as it is written, not as the judge wishes it were.” She discussed her belief that courts should enforce the rule of law, but that policy decisions are not the responsibility of the courts. She assured the committee that in every case, she had “done my utmost to reach the result required by the law, whatever my own preferences might be.”
After that, Judge Barrett skillfully fended off questions for almost twenty hours over two days. She readily acknowledged being a devout Catholic but said “my personal church affiliation or my religious belief would not bear in the discharge of my duties as a judge.” She deflected questions about her involvement with the People of Praise, a tight-knit, charismatic religious community, although reporting by the New York Times and other media outlets revealed that she had served as a “handmaid” in the group and that her family’s life had centered on the community. Her father served as a principal leader of the New Orleans branch and was on the board of governors, and her mother served as a handmaid.17
Judge Barrett conveyed little substantive information about her views, including the constitutionality of the Affordable Care Act and potential cases that might challenge the outcome of the 2020 presidential election. She relied on the “Ginsburg rule,” stating that Justice Ginsburg, with her characteristic pithiness, used this to describe how a nominee should comport herself at a hearing: “No hints, no previews, no forecasts. This had been the practice of nominees before her but everybody called it the Ginsburg rule because she stated it so concisely.” Judge Barrett was especially reticent, refusing to recognize even the most well-established Supreme Court precedents.18 She defended her integrity against the charge that she might be a “political judge” with a feistiness that surprised many observers. The questions seemed reasonable, given the fact that Judge Barrett was little known and that her confirmation was being rushed through at a time when Trump was expressing his intention to contest the election results right up to the Supreme Court.19 None of these issues would sidetrack Barrett’s confirmation, and her strong legal credentials received a glowing endorsement from Noah Feldman, the liberal Harvard Law constitutional scholar, who had clerked alongside her at the Supreme Court.20
Everyone knew that the only issue that might affect the outcome was the outrageous process. The Democrats on the Judiciary Committee were livid about McConnell’s decision to ram through the confirmation of a Supreme Court justice in what appeared to be the closing hours of the Trump presidency. Amy Klobuchar, who had run a strong campaign for the Democratic presidential nomination, posed the issue most eloquently. Speaking angrily to her Republican colleagues, she noted that they “had set out the precedent . . . that the people choose the President and the President chooses the nominee.” She continued: “It has been said that the wheels of justice turn slowly. Injustice, however, can move with lightning speed, as we are seeing today. We cannot, and you at home should not, separate this hearing from the moment we are in, and the judge he is trying to rush through.” Klobuchar, whose husband and father had both been stricken by COVID, excoriated Trump and the Senate Republicans for rushing forward with this nomination instead of legislation to provide needed COVID relief.21
With his characteristic flair, Lindsey Graham had already addressed the question of confirming a Supreme Court justice in an election year. In a 2016 interview, Graham had said, “If an opening comes in the last year of President Trump’s term and the primary process is started, we’ll wait for the next election.” In a 2018 interview with Jeffrey Goldberg of The Atlantic, Graham doubled down on his previously stated position: “Now I’ll tell you this. This may make you feel better but I really don’t care. If an opening comes in the last year of President Trump’s term and the primary process is started, we will wait to the next election. And I’ve got a pretty good chance of being the Judiciary Committee chairman.”22
That seemed clear enough, but by now Graham’s previous statements were utterly worthless. Graham loved being Trump’s new best friend; equally important, Trump was much more popular in South Carolina than Graham, who was facing an unexpectedly tough election challenge from Democrat Jamie Harrison. On September 19, even before Judge Barrett was nominated, President Trump tweeted, “@GOP We were put in this position of power and importance to make decisions for the people who so proudly elected us, the most important of which has long been considered to be the selection of United States Supreme Court justices. We have the obligation, without delay.”23
Graham responded immediately by tweeting, “I fully understand where @realDonaldTrump is coming from.” Later that day, he issued a series of tweets that blamed the Democrats for the changes in the judicial confirmation process: “Harry Reid changed the rules to allow a simple majority vote for Circuit Court nominees, dealing out the minority. Chuck Schumer and his friends in the liberal media conspired to destroy the life of Brett Kavanaugh and hold that Supreme Court seat open. In light of those two events, I will support President @realDonaldTrump in any effort to move forward regarding the recent vacancy created by the passing of Justice Ginsburg.”24
Mitt Romney had shown his integrity and independence by being the only Senate Republican to vote to remove Trump from office at his impeachment trial. Now Romney faced the decision of whether he would confirm a Supreme Court nominee put forth by a president whom he had labeled a threat to our democracy. But Trump was still president, and notwithstanding his escalating attacks on the integrity of the election, Romney had no problem focusing on Barrett’s “distinguished legal and academic credentials” and confirming her eight days before Election Day, even as fifty-eight million votes had already been cast.25
Chuck Grassley, the longest-serving Republican senator, had chaired the Judiciary Committee until January 2019 and had a well-earned reputation for cantankerous independence. In July 2020, he expressed the view that if he were still chairman, he would not consider a Supreme Court nomination so close to a presidential election.26 However, it quickly became clear that Grassley’s principled position was limited to the hypothetical situation of his being chairman. If his successor as Judiciary Committee chairman chose to move the nomination forward, Grassley would support it.27
Lamar Alexander, age eighty, was perhaps the most respected Republican in the Senate. He had announced his retirement and was coming to the end of a storied career, having served as senator, governor, cabinet officer, presidential candidate, and university president. Even when the Senate seemed hopelessly gridlocked in 2016 after McConnell blocked consideration of Garland’s nomination, Alexander still managed to work with a Democratic colleague, Patty Murray, to produce major education legislation revising the troubled No Child Left Behind Act and major health-care legislation, the Faster Cures Act.28
When Alexander spoke, other Republicans listened. During the impeachment trial, Alexander was always regarded as the potential deciding vote on whether witnesses would be called. But a longtime friend of Alexander noted, “Lamar’s no Howard Baker. He’s much more cautious.” That assessment proved accurate. When Alexander announced his opposition to calling witnesses, he said that the divisions over impeachment mirrored the deep partisan divide in the country, and removing Trump in an election year would only fan the flames of partisanship. “Let the voters decide” was an appealing argument, although it was premised on the assumptions that Trump would learn some lesson from being impeached and there was a limit to how much more damage he could do in his final year in office.
But the nomination of Amy Coney Barrett showed that Alexander’s willingness to leave important decisions to the voters only went so far. After meeting with Judge Barrett on October 21, Alexander said, “Having attended college in Tennessee and law school in Indiana, her background will strengthen the Supreme Court by diversifying it. . . . Senator McConnell is only doing what the Senate majority has a right to do and what Senate Democratic leaders have said they would do in similar circumstances. No one should be surprised that a Republican Senate majority would vote on a Republican President’s Supreme Court nomination, even during a presidential election year.”29 It is not clear whether Alexander believed what he was saying. His protégé, Bill Hagerty, was running to succeed him in the Senate, and Alexander undoubtedly wanted to avoid taking any action that would anger Trump or alienate his supporters in Tennessee.
In addition to Alexander, six other Republican senators would never again face the voters: Mike Enzi, Richard Shelby, Pat Roberts, Richard Burr, Pat Toomey, and James Inhofe. They had all served multiple terms, they had been chairmen of major committees, they were big men in their states, and they had received the greatest privilege that a republic could bestow. Any of them could have stopped McConnell’s train in its tracks. Instead, they chose to complete their careers without rocking the boat. Not one of them objected to a process that bore more resemblance to Russia or other authoritarian countries than to America.
The Republican senators would stay in line, following Trump and McConnell’s dictates. (Collins was the exception; McConnell understood that she needed to show independence in the closing days of a tough race for reelection in Maine.)30 Some undoubtedly believed that having one more extremely conservative Supreme Court justice was a moral imperative, overriding all other considerations. Others simply did not want the hassle of confronting aggressive Trump supporters in town hall meetings or restaurants. And, in a period of tribal politics, they were, and would remain, Republicans. And so Mitch McConnell had the votes to confirm Amy Coney Barrett, just as surely as he had had them for Neil Gorsuch, Brett Kavanaugh, and 228 Trump nominees for the district and circuit courts.
As the vote approached, McConnell treated the Senate to a long description of the judicial wars between the parties, which was his typical mix of fact, half-truths, and utter falsehoods. “It is a matter of fact—a matter of history—that it was the Senate Democrats who first began our contemporary difficulties with judicial nominations back in 1987, and who have initiated every meaningful escalation—every single one of them—from then up to the present day,” McConnell claimed.31 And indeed, the Democrats had plenty to regret in their approach to the judicial wars. Democrats had never matched the Republicans’ laser focus on the importance of the courts or their long allegiance with the Federalist Society and the Heritage Foundation that had finally produced the result for which they had worked so hard. Dianne Feinstein provided one more painful reminder of Democrats’ futility and fecklessness at the close of the Barrett hearings, when she inexplicably embraced Lindsey Graham and praised the quality of the proceedings.32
But McConnell’s “history lesson” was incomplete and distorted. In truth, the Supreme Court confirmations after Bork had been relatively civilized, with the exception of the nomination of Clarence Thomas in 1991, until McConnell refused to consider the Garland nomination in 2016. There had been no precedent for refusing to consider a nomination in a presidential election year; many Supreme Court justices had been considered and confirmed in such circumstances. And there was certainly no precedent for ramming through Barrett’s confirmation eight days before Election Day. Assessing his own work, McConnell concluded, “This confirmation process falls squarely within history and precedent. Neither falsehoods nor strong feelings change the facts.”33 This was an outright lie. But it is often said that history is written by the winners; McConnell had won and was determined to write the history.
In April 2020, when the Senate had joined the House in passing the $2.1 trillion CARES Act, a desperately needed response to the rampaging novel coronavirus, McConnell had proudly said, “The Senate stepped up.”34 Now, however, he claimed Barrett’s confirmation as a personal triumph. It was, he judged, “the single most important accomplishment of my career. I’m proud of it, and I feel good about it. . . . At the risk of tooting my own horn, look at majority leaders since L.B.J. and find another one who was able to do something as consequential as this.” In case anyone was wondering, McConnell explained exactly why it was so consequential: “A lot of what we have done over the last four years will be undone sooner or later by the next election. They won’t be able to do much about this for a long time to come.”35
In truth, McConnell was completely justified in claiming his personal triumph; no one else would have had the shameless audacity to accomplish it. McConnell and the other Republican senators knew, as surely as night follows day, that it was fundamentally wrong to confirm a nominee to the Supreme Court so late in an election year. That would be true whoever was president, but they knew it was particularly outrageous to give that power to Donald Trump, who was conducting a continuing assault on the rule of law, threatening our democracy by working to undermine the election, and was about to be repudiated by the voters. Surely Trump should not get the opportunity to have another justice confirmed unless the American people chose to reelect him. And, on some level, the Republican senators probably understood that the last thing our crippled country needed, while struggling with disease, death, and fearsome economic damage from the coronavirus, in a moment of national soul-searching about systemic racism, was a bitter battle over the Supreme Court.
Criticism of McConnell’s brazen action understandably focused on what the Washington Post editorial page would describe as the “poisonous, dishonorable hypocrisy” of ramming through Barrett’s confirmation, given his refusal to consider President Obama’s nomination of Judge Garland four years earlier.36 But it was worse than that. Although McConnell’s action in 2016 was unprecedented hardball, it retained some connection to our democratic process. In that election year, the voters still had the opportunity to decide on the president who would fill the seat. McConnell’s action this time was intended to cut out the voters and to lock in a right-wing majority on the court, no matter what verdict the voters would render on Trump. It was a naked power grab of the sort that is more familiar in Russia, Turkey, or other authoritarian or banana republic countries. In their book How Democracies Die, Daniel Ziblatt and Steven Levitsky describe one of the essential elements of democracy: “forbearance,” not pushing your power to the limit by doing anything and everything that is not illegal.37 “Forbearance” had ceased to be a characteristic of Mitch McConnell years before, and it never had been one for Donald Trump. Nancy Pelosi’s memorable observation that the founders had not anticipated the possibility of a rogue president and a rogue majority leader was right on the mark.38
McConnell had claimed his ultimate victory. He knew that Trump was likely to lose, and he was comfortable with it, having gotten everything out of Trump’s dangerous and chaotic presidency that mattered to hm. Confirming Justice Barrett would be a boost for a number of the Senate Republicans facing tough races, but even if Joe Biden won the election and the Senate went Democratic, McConnell would still be the most powerful Republican in Washington, a roadblock or an ally to President Biden depending on what would help him return to the majority in two years.39
With eight days to go before the presidential election, McConnell, increasingly arrogant and self-satisfied, would have assessed his position as very strong. His 2016 memoir was titled The Long Game, and no one had matched his skill at it. Donald Trump dominated the political landscape as no previous president had. But we were living in Mitch McConnell’s America before Trump arrived, and if McConnell had his way, that would continue long after Trump left Washington.