Bad news from Ed Markey: Originalism is racist, sexist, and homophobic

He’s not handling Barrett’s confirmation well.

The good news for Markey is that Congress has the power to pass all sorts of laws that would undo vestiges of the Founders’ racism, sexism, and homophobia. The bad news is that Congress doesn’t actually legislate anymore, it simply confirms judges who do most of the actual legislating instead.

So you can understand his angst, knowing that Amy Coney Barrett is about to assume far more power over Americans’ lives than the shriveled, bitterly partisan appendage created by Article I is capable of mustering nowadays. Although who knows? Maybe come January Congress will be under single-party control and will be willing — if not necessarily able, per the Senate filibuster — to reclaim more than a token role in American government.

It’s remarkable how little impact rhetorical roundhouses like this have had on public perceptions of Barrett. Morning Consult published its final pre-confirmation opinion poll on her this afternoon, and although she’s slipped a tiny bit from the 51/28 approval she enjoyed a week ago, she’ll end up with the highest share of Americans in favor of confirming her among Trump’s three nominees. Even Gorsuch, whose seat was essentially decided by the 2016 election, didn’t have as much support.

There *is* strong partisan polarization over Barrett, which probably explains Markey’s spiel playing to the cheap seats today. He’s feeding his base red meat, knowing that Democrats are 20 points more likely to oppose Barrett’s confirmation than they were Gorsuch’s. Still, that’s a more temperate reaction to her among lefties than one might have expected before the process began. She was nominated to replace a liberal icon; odds are quite high that she’ll cast a vote to overturn Roe v. Wade; she’s being pushed through literally eight days before a presidential election that otherwise would have decided who should fill the seat. And Trump has taken to chattering about how it’s important to have a ninth vote on the Court in case of any election ballot disputes, which is his clumsy way of implying that he expects Barrett to hand him a second term if and when she’s called on to do so. Put all of that together and you’d expect *intense* liberal opposition.

Instead they’re “meh.” They’re more opposed to her than they were to Gorsuch but not as opposed as they were to Kavanaugh.

Also interestingly, despite the nuclear partisan warfare over Kavanaugh’s confirmation, more Republicans want to see Barrett confirmed than wanted to see him seated on the bench. Maybe that’s because a certain segment of GOPers believed the allegations of sexual misconduct against Kavanaugh, but I think the enthusiasm is more specific to Barrett. She’s cracked up to be the next Scalia (including and especially on Roe), she’s made a good impression in her public appearances, and Republicans know they’re staring down the barrel of an electoral defeat next week that would otherwise snatch this vacancy from their grasp. They want this done. Fill the seat and cement a decisive conservative advantage on the Court. All-in for Amy.