Justice Amy Coney Barrett’s Oct. 26 confirmation by the United States Senate established the former judge’s lifelong term on the Supreme Court as an associate justice, a topic of recent controversy in the wake of Justice Ruth Bader Ginsburg’s death Sept. 18. With the Nov. 3 presidential election rapidly following Barrett’s confirmation, her appointment sparks a serious discussion surrounding the precedent it sets in its proximity to the 2020 general election.

President Donald Trump’s initial nomination of Barrett directly opposed Ginsburg’s dying wish not to be replaced until a new president is in office. Democratic nominee Joe Biden, who is polling at 51% as of Nov. 1 in comparison to Trump’s 44%, sided with Ginsburg, stating prior to Barrett’s confirmation that the appointment of a new justice should not take place until after the election. 

“The voters should pick the president, and the president should pick the justice for the Senate to consider,” Biden told reporters Sept. 18 in response to Ginsburg’s passing earlier that day.

Biden’s statement that the appointment of a new justice should have waited until after the election, however, goes against Ginsburg’s own words in 2016, when President Barack Obama attempted to replace Justice Antonin Scalia and faced criticism from Republicans for doing so in an election year. Ginsburg at that time stated the president “is elected for four years, not three years” – ultimately supporting Obama’s right to nominate a replacement justice during his term in office. 

Adding another layer of controversy, Barrett’s confirmation took place in lieu of the passage of an economic stimulus package, which has yet to be passed with the Senate in recess. A poll by The Hill asserted that 74% of registered voters sampled preferred the COVID-19 relief bills to be prioritized above replacing Ginsburg’s seat. 

“It felt like a slap in the face to millions of people when the Republican Party pushed this through, at a time when millions of Americans are suffering in this pandemic,” said Rachel Potucek, the communications director for the Democratic Party of Orange County.

The events after Ginsburg’s passing contrast with Obama’s nomination of U.S. Circuit Judge Merrick Garland. Then-Justice Antonin Scalia passed away Feb. 13, 2016, nine months before the presidential election. At that time, the Republican-held Senate refused to confirm Obama’s nominee. Senate Majority Leader Mitch McConnell and then-Judiciary Committee Chairman Chuck Grassley wrote an opinion piece for The Washington Post that indicated voters should have a say in “whom they trust to nominate the next person for a lifetime appointment to the Supreme Court.”

Randall Avila, executive director for the Republican Party of Orange County, believes the Senate’s actions in Garland’s case were completely justified. 

“It’s not incumbent on the Senate to have to confirm a nominee,” he told The Panther. “At that time, that nominee was not someone that had bipartisan support, so that was a misplay on President Obama’s part.”

By contrast, Barrett was confirmed by the Republican-majority Senate in little over a month’s time after Ginsburg passing – only eight days before the presidential election. Trump announced Barrett’s nomination Sept. 26, and the justice was confirmed within a month. The average time to confirm a Supreme Court justice since 1975, however, is 68 days, marking Barrett’s confirmation as an accelerated appointment.

Andrea Molle, a Chapman political science professor, said Trump and the Senate Republicans acted on the opportunity they were given. 

“Politically speaking, that was the rational thing to do from their perspective,” he said. “(Confirming Barrett) goes against everything they said before, but it’s not the first time that’s happened in politics.”

Barrett’s confirmation marks Trump’s third Supreme Court appointment, swaying the Court to a 6-3 Republican majority. This matches the number of appointments under President Ronald Reagan’s administration, the highest number of Supreme Court appointments by a president in the last 50 years.

“Whether it was (in 2016) or whether it’s now, it’s the same root driver, which is to have power beyond what they’re duly elected to have,” Potucek said. “It feels like an abuse of power.”