As Amy Coney Barrett's confirmation hearing nears, parallels to the 2000 election are hard to ignore.
If Amy Coney Barrett is confirmed to the Supreme Court before Nov. 3, she will be the third sitting justice to have played a role in Bush v. Gore, the infamous case that decided the 2000 presidential election in favor of President George W. Bush against former Vice President Al Gore.
Twenty years later, Barrett could play an outsized role in deciding the 2020 election — so long as everything goes to plan for Senate Majority Leader Mitch McConnell.
In the aftermath of the 2000 election — in which Gore won the popular vote — Justices Brett Kavanaugh and John Roberts worked to ensure Bush won Florida's 25 Electoral College votes, and with them, the presidency.
Now, with Barrett's confirmation, the Supreme Court could determine the outcome of this year's high-stakes presidential election. Barrett worked for the law firm Baker Botts, where James Baker, Bush's "point man" on Bush v. Gore worked. While Barrett has admitted to working on the case while at Baker's firm, she has so far declined to give any specifics about that work.
If the court does end up ruling on the outcome of this year's presidential election, Barrett's conservative legal experience suggests she could cast the deciding vote in favor of Donald Trump. If the seat left by Justice Ruth Bader Ginsburg remains vacant, the justices would split 4-4 along ideological lines. In the case of such a split, the lower court's ruling is upheld.
Richard Rifkin, the legal director of the Government Law Center at Albany Law School, says that even though justices are supposed to remain neutral, the reality is that all arbiters of the law are in some way influenced by their personal experience and beliefs.
"When you're a judge on any court — and even more so on the Supreme Court — you're supposed to take a neutral position," Rifkin told The American Independent Foundation. "As John Roberts was confirmed, he said, 'I’m an umpire!' But your history ultimately impacts your attitude in court, and I don't see why that wouldn't also be true for Barrett."
Before she was confirmed as a judge for the Seventh Circuit Court of Appeals, after being nominated by Trump in 2017, Barrett clerked for the late Justice Antonin Scalia, one of the most conservative Supreme Court justices of all time. Scalia played a key role in gutting the 1965 Voting Rights Act, which he described as a "racial entitlement."
The Supreme Court has already ruled to make it harder for voters in South Carolina to cast their ballots, foreshadowing the fights to come after Election Day.
Rifkin said the 2020 election will differ from the 2000 election because of the country's extreme polarization.
"If you you go back to Bush v. Gore, it wasn't the situation we find ourselves in today, where both parties are accusing each other of undercutting democracy," Rifkin said. "In 2000, both parties fought each other hard and spent a lot of time and resources on everything going on in Florida. And yet, when SCOTUS spoke, basically that ended everything. What they said in essence declared Bush the winner in Florida, and Bush became the next president just like that."
While Democrats have held a number of internal discussions about ways to slow down Barrett's confirmation — or stop it altogether — Republican's have signaled their eagerness to confirm her as soon as possible.
"One reason I’m excited about Amy is the fact that I don’t see her as being a drifter, that she’ll get in there and start moving to the center and left," Sen. Mike Braun (R-IN) said in an interview. "She’s a constitutionalist and has a good conservative heritage."
"Pro-life is going to have a defender in Amy," he added.
Published with permission of The American Independent Foundation.