How they were the ones who actually “stole” RBG’s seat
On September 26, 2020, President Donald J. Trump nominated U.S. Court of Appeals Judge Amy Coney Barrett to the Supreme Court to replace the late Justice Ruth Bader Ginsburg. Barrett’s nomination process has predictably made shockwaves, especially given the vast ideological differences between her and Ginsburg, prompting many Democrats to label it a “power grab.” Senator and former Presidential candidate Amy Klobuchar (D-MN) has even gone so far as to say that by moving forward with Barrett’s confirmation hearings, Trump and the Senate Republicans are “trying to steal” Ginsburg’s seat.
To justify this extreme accusation, most progressives point to the abortion debate. They claim that if Barrett is confirmed she would not only push the court farther to the right, she would also likely vote to strike down Roe v. Wade – the 1973 ruling which has tragically and unconstitutionally declared that it’s a pregnant “woman’s right to choose” whether her unborn child lives or dies. This fact that Barrett is a conservative, pro-life, devout Catholic nominated to replace a jurist who is widely seen as a feminist and liberal icon, has the left up in arms. However, no one in the media even bothers to mention the justice who Ginsberg herself replaced in 1993 – Byron White, the man who wrote the dissent to Roe.
Justice White, also a star NFL running back, was an appointee of John F. Kennedy who served on the Court for over three decades. Even though he was a Democrat, he lived during an era when the party was more of a “big tent,” and did not pursue a strict litmus test on the issue of life. Also, unlike the activist Ginsburg, or any of the Court’s current liberals, White believed in judicial restraint and opposed the idea of the Court legislating from the bench. In addition to Roe, White also dissented in Miranda v. Arizona, a case often cited as a victory for progressive judicial activists. It is therefore apparent that if White was on today’s Supreme Court, he would be a member of its conservative wing. As a testament to this fact, one of his clerks was none other than now-Justice Neil Gorsuch – Trump’s first Supreme Court pick, who has undoubtedly been a staunch lifelong conservative, much like his predecessor, Justice Scalia. Gorsuch even referred to his former employer as his “childhood hero” and “one of the greats.”
Justice White’s conservatism was in full force when he dissented from Roe’s 7-2 ruling. “I find nothing in the language or history of the Constitution to support the Court’s judgment,” he stated. Continuing, White held that the Court “fashion[ed] and announce[d] a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action.” Almost twenty years later in 1991, White doubled down on his holding that Roe’s creation of a “right to abortion” was blatantly unconstitutional. He joined Scalia’s dissent to Planned Parenthood v. Casey (which upheld Roe 5-4 vote) calling the judicial activism that legalized abortion nationwide, “an improvident and extravagant exercise of the power of judicial review.”
When Judge Coney Barrett’s hearings begin in two weeks, Senate Democrats will cry foul and demand that Ginsburg’s seat is filled by Joe Biden (this is of course assuming he doesn’t unexpectedly fail on election night like Hillary Clinton did in 2016). After all, they claim that Barrett’s confirmation would deny the nation a “balanced” Supreme Court and insist that Ginsburg must be succeeded by a fellow progressive for the sake of her legacy and “fairness.” But what about Justice White’s legacy?
If any President should be accused of stealing the Supreme Court seat in question, it is Bill Clinton who appointed Ginsburg upon White’s retirement in 1993, when he stepped away from the lifetime appointment so a fellow Democrat could appoint his successor (interestingly, he was the only registered Democrat on the Court at the time). However, Ginsburg was unanimously seen as a moderate non-ideological choice at the time of her nomination and far from the left-wing firebrand she evolved into. Only three Senators voted against confirming her, and they were arguably the three most conservative Republicans in the chamber.
There is no question that if Byron White was alive today, he would regard Amy Coney Barrett as aligning closer to his judicial philosophy than Ruth Bader Ginsburg. The Democrats need to check their facts and brush up on history. President Trump and the Senate majority are only taking back for conservatives, and the pro-life movement, what once belonged to them.