Donald Trump lavished praise on Judge Amy Coney Barrett Saturday, when she was announced as the president’s selection to fill Ruth Bader Ginsburg’s vacant Supreme Court seat.
She is Trump’s third nominee to the high court. Barrett, Trump has been told, will be a “female Antonin Scalia”.
Starting with the obvious, it’s unfortunate that, in 2020, women are judged (no judicial pun intended) based on their purported capacity and willingness to function as stand-ins for dead men.
Her ideological affinity and relationship with Scalia notwithstanding, and the necessity of simplifying complex issues both for the current occupant of the Oval Office and for the general public aside, Judge Barrett is not a “female Antonin Scalia”. She is just Amy Coney Barrett, an accomplished (if controversial) jurist, and a person in her own right. She should be referred to as such, no matter how much you may disagree with her views. I’m sure the late Justice Ginsburg would agree.
With that out of the way, she did clerk for Scalia more than two decades ago, and is seen as a “home run” for conservatives.
For Democrats, and especially for Progressives, the notion of Barrett “replacing” Ginsburg is nothing short of abhorrent for a laundry list of reasons, not least of which is the prospect that her religious views “might” creep into her jurisprudence with regard to women’s reproductive rights.
“Roe has been affirmed many times and survived many challenges in the court. And it’s more than 40 years old”, she ventured, in response to a question from Dianne Feinstein during a 2017 confirmation hearing which made Barrett “an instant celebrity” (as The New York Times put it Friday) among religious conservatives.
“Why is it that so many people on this side have this very uncomfortable feeling that, you know — I think whatever a religion is, it has its own dogma — the law is totally different”, Feinstein went on to lecture. “In your case professor, when [I] read your speeches, the conclusion one draws, is that the dogma lives loudly within you”.
The Times goes on to say that Feinstein’s “the dogma lives loudly within you” phraseology was subsequently “emblazoned on mugs and T-shirts in Catholic circles as a point of pride”.
That’s unfortunate because (and I’ll put this as generously as possible) one should be wary of dogma living too “loudly” inside one’s own mind. Historically, people (and groups of people) who are unable to turn down their internal dogma volume have been prone to saying, and sometimes doing, things that precipitate unfavorable outcomes, at least from a utilitarian perspective.
Barrett is a purported textualist and an ostensible originalist, judicial inclinations which I would argue are becoming increasingly incompatible with modernity, almost by definition. Some of America’s most revered Founding Fathers would have arguably had no qualms about holding Barack and Michelle Obama as property, for example.
Times change. Americans regard the Constitution as a pseudo-religious document, but the Founders realized that the “truths” to be enshrined in the new nation’s system of governance were “self-evident” — they said as much in another founding document, you’ll note.
“Self-evident” is a synonym for common sense. You don’t need to reference the calligraphic scrawls of mutinous settlers 200 years dead to make laws based on common sense.
Of course, common sense, as it finds expression in rules and laws that uphold “self-evident truths”, is everywhere and always under siege by things like greed, the lust for power, deeply-ingrained prejudices, ignorance, and, yes, religious dogma.
Many of the Founders (broadly construed) harbored some, or all, of those vices, and that cognitive dissonance has been on display in the country they created ever since.
So, here we are, in 2020, on the brink of appointing and confirming a nominee for the high court whose purported originalist/ textualist bent may be put to the ultimate test just weeks after confirmation.
Trump has made it clear that he expects his latest nominee to side with him in the event the election results are inconclusive. One imagines he’s said that directly to Barrett, but even if he hasn’t, he spent all of this week emphasizing how important it is to get a new justice confirmed ahead of the vote to avoid the possibility of a 4-4 split.
Under normal circumstances, that wouldn’t necessarily be a problem. It might even be viewed as the most prudent thing to do. But these circumstances (and this president) are anything but normal.
Trump has repeatedly refused to commit to conceding in the event he loses the election, and the “easiest” way to get around that would be to challenge the vote and prevail in court. Other options for holding onto power are less palatable, to put it mildly, but there are very real concerns that this president could resort to those options in a worst-case scenario.
Barrett, whatever she might be, is not stupid. So, she knows all of this. She knows that her vote could be the difference between a relatively peaceable usurpation of the document to which she claims allegiance, or some other route to keeping Trump in power. Either way, the Founders wouldn’t be amused.
Some have already put this in caustic terms. A statement from the National Organization of Women charges Senate Republicans with trying “to steal another seat on the Supreme Court so that Amy Coney Barrett can help repeal Roe and shred the Affordable Care Act — but not before she votes with a new, ultra conservative majority to validate an election [Trump] intends to steal”.
Environmental groups don’t seem pleased either. The League of Conservation Voters branded Barrett a “biased idealogue”. “Amy Coney Barrett on the Court would not represent the majority of voters who believe climate change is real and want to see action”, the LCV said Friday. “Barrett has made clear her disdain for federal agencies, and the public protections they issue which puts our ability to tackle climate change directly in her crosshairs”.
Brett Hartl, director of government affairs at the Center for Biological Diversity, called Barrett “an ideological fanatic” with a “slim judicial record [that] shows she’s hostile to the environment and will slam shut the courthouse doors to public interest advocates”.
Senator Ed Markey was even more direct, assuming that’s possible. Markey judged Barrett “a far-right, extremist” who represents “a clear and present danger to reproductive rights, LGBTQ rights, labor rights, voting rights, civil rights, and many more”.
Conservative groups issued a hodgepodge of statements in support of Barrett, most resembling some version of the following, from Senator John Cornyn: “[Judge Barrett] is a legal trailblazer [who] has maintained the importance of an independent judiciary that interprets the law and Constitution as written, operating free from political pressure”.
Cornyn went on to say that he “hope[s] Democrats choose not to engage in another character assassination, as they did against Justice Kavanaugh”. (I’m not sure “character assassination” is the best way to describe an inquiry into allegations of sexual assault, however dubious or not you find the allegations.)
Just to be sure this isn’t lost in the cacophony, there is no precedent for a vote on a SCOTUS nominee this close to an election. None. The closest has been July, and by now, everyone is familiar with the almost cartoonish hypocrisy on display by Mitch McConnell and other high profile Republicans, whose stonewalling of Merrick Garland’s nomination makes for the starkest of contrasts with the “warp speed” process unfolding in Washington at present.
In the same 2017 hearing mentioned above, Barrett described herself as “a faithful Catholic” who “take[s] my faith seriously”. She was keen to stress, however, that her “personal church affiliation or religious belief would not bear in the discharge of my duties as a judge”.
Forgive me, but that’s simply not good enough for a modern society. With the caveat that I didn’t endeavor to listen to the entirety of Barrett’s 2017 remarks to lawmakers (although I most assuredly will by the time the weekend is out), what should be required of all judges is an explicit acknowledgement that there is no place on any court for religious ideals of any kind. In the event the tenets of a religion (any religion) prove useful in the administration of justice, that should be a happy coincidence. That is, “blind” justice, delivered based on the facts, comes first. If it’s backed up by religion, then so be it.
Implicit in the idea of religious freedom (oddly and probably unintentionally) is a tacit admission that religion is not amenable to objectivity. In America, one is just as free to worship Alarik (a benevolent squirrel deity who lives in the backyard) as one is to worship the historical Jesus. One person says Alarik is now in his 567th incarnation, and that 4,000 years ago, he was a 500-foot, winged lizard that saved the planet from a hostile, alien invasion. Someone else says Jesus Christ walked on water. There is no proof of either, and none is forthcoming. As such, Alarik and Jesus have no place in laws governing a modern society. That doesn’t preclude your right to worship Alarik on Thursday or Jesus on Sunday (in fact, it’s what protects that right), it just means that allowing either of them to influence our laws is the most dangerous kind of slippery slope there is — just ask any woman in Saudi Arabia.
“Judge Barrett’s connection to the small and relatively obscure Christian group People of Praise also attracted attention after a report in 2017 that she and her husband were members”, the Times reminds you, adding that “the group grew out of the Catholic charismatic renewal movement that began in the late 1960s and adopted Pentecostal practices such as speaking in tongues, belief in prophecy, and divine healing”.
As far as Barrett’s judicial record, one red flag is a 2019 opinion joined by Barrett which, while upholding a law that protects women at abortion clinics from exchanges with “sidewalk counselors”, notes that,
The road the plaintiffs urge is not open to us in our hierarchical system. Chicago’s bubble-zone ordinance is materially identical to–indeed, is narrower than–the law upheld in Hill. While the Supreme Court has deeply unsettled Hill, it has not overruled the decision. So it remains binding on us. The plaintiffs must seek relief in the High Court.
That clearly suggests that the decision may have been different were the system amenable to lower court defiance. Now, Barrett is set to be on the court which sets the laws that are “binding” in America’s “hierarchical system”.
All of that said, biographical details on the Barrett family paint a flattering picture. Among her seven children are two adopted from Haiti, and a son with Down syndrome, who the Times says Barrett “would carry downstairs by piggyback in the morning”. She is also a volunteer who colleagues describe as “radically generous and hospitable”.
Unfortunately for Barrett, any and all appraisals (including the one you’re reading right now) of her qualifications for the high court will be hopelessly colored by bitter partisan rancor and the overall state of the country, which is on the brink of descending into something like organized anarchy.
“Fair” isn’t something that anyone on either side of the aisle is going to be when it comes to her nomination.
And that should be just as disheartening for Barrett when it comes to those singing her praise as it is with regard to the harsh criticism emanating from detractors.
Someone who aspires to the post she is now set to occupy should shun partisan sycophants just as harshly as she would disingenuous, agenda-driven critics.
In fact, I would argue that Barrett should have simply refused the nomination on the grounds that the current circumstances are insulting to her own dignity.
“In fact, I would argue that Barrett should simply refuse the nomination on the grounds that the current circumstances are insulting to her own dignity.”
I agree.
It’s unfortunate that those who seek power and status are often the least fit to lead. This concept is realized in its maximum expression in Trump.
Amy Coney Barrett should turn down the nomination, based on nothing more than the optics that she is just a political puppet to Trump. Unfortunately, the odds of that Happening are less than me looking out the back window and seeing Alarik walking on water.
If The Honorable Barrett intends to be NOT a puppet, then there is no reason to refuse the nomination. I feel that your statement presumes puppetry, and thereby is insulting.
“intends to be NOT a puppet”
Of course she will.
The way Supreme Court justices are chosen these days they are all selected based on their ability to pass the ‘puppet’ requirements both sides demand of their own candidates.
Agree with your conclusion…. Barrett should never allow the Dog and Pony Show that could very well contradict the best interests as well as the will of the people in a time frame that is as critical as it could possibly be.. Only a broken Political system could act contra to that reality !!!
Even if she turns it down, there’s plenty more of her ilk where she came from.
Plenty? Trump has already boxed himself into a woman candidate, one with strong conservative (anti equality?) leanings and with strong judicial qualifications. Plus the clock is ticking on installing someone in time to help with any election decision fight.
Folks, the last line in this article was just a “close it with a bang” line, so to speak. She’s not going to turn it down. There’s no chance of that.
Wow, thanks! I’ve finally found a deity I can commit to – Alarik the benevolent squirrel who lives in my backyard – he lives in EVERYONE’S backyard! As soon as one of my cats eats him, he will once again be reborn as a giant lizard who will save America from itself. Spreading the word on social media!
Originalism was once so odious that its first public adherent seeking the high court got Borked for it. Yet it has since spread like a religion in those high ranks, and after this it would appear to have a plurality if not a majority. Never mind that such fundamentalism is epistemologically incoherent as a philosophy, rendering it an utterly nonsensical jurisprudence, and never mind that the framers clearly used and intended to use abstract moral language throughout (you also need a moral philosophy to interpret it). I suppose if one’s moral philosophy is simply ‘Catholicism’, like Scalia and presumably Coney Barrett, well then you might presume a sort of unchanging morality over time (that of your religion, not those “other” religions), which of course also denies humanity any of its other fundamentally social premises. Even so, originalism is both discriminatory and philosophically incoherent. If you swap robes and religions, are they Ayatollas fundamentally all that different?
Did Justice Scalia’s Catholicism unduly influence any of his decisions, votes or opinions on the bench? Where, please.
WPG, this will be my only response to a comment of yours.
You’re use of the term “unduly” makes your question impossible to answer as it allows you to move the bar wherever you want in order to prove yourself correct.
If we leave out the term unduly in your question and just say influence, then Lawrence v. Texas comes to mind as a specific example. I won’t offer an opinion as to whether the decision is right or wrong since I don’t care to have that argument, so please don’t confuse my statement with one of bias. Also, I ask everyone not to assume that I’m projecting this concept of Catholicism and its correlation with Lawrence v. Texas onto all Catholics. I’m not. That would be a horrible oversimplification of the Catholic religion and I mean no offense to any of the individual members or to Catholicism as a whole. Religions are open to a wide range of interpretations, and I won’t pretend to be knowledgeable about all of the differing views. I’m only stating that in this particular instance, and in Scalia’s own interpretation of his own religion, it’s likely that his religious beliefs had at least some sway in his decision (though, I’ll admit, we can never know for certain).
Speaking generally, we all make decisions based on our beliefs, religious or otherwise. To suggest that beliefs don’t come into play when making decisions, even in rulings made by the Supreme Court, is ridiculous. If you’re looking for literal proof, I’m not sure where you would find it. It’s not like Scalia could write such an argument in a dissent because of, you know, that whole separation of church and state problem he’d have.
Anaximander’s comment is on point, as usual, and very difficult to argue with the general premise. You’re question borders on absurdity in the level of proof it requires in order to convince you of anything you don’t already know to be “true”.
The problem with your question is the word “unduly”. Should any influence be acceptable in a country supposedly founded on principles of religious toleration, and the separation of church and state? In any event, the answer is yes. If you’re looking to pinpoint examples, perhaps you could explain to me how it is consistent that he didn’t believe Native Americans who smoke peyote in religious ceremonies are exempt from otherwise universal drug laws, and yet simultaneously believed that a “for-profit corporation” that happened to be owned by Christians with tens of thousands of employees who certainly did not all hold the same religious beliefs as the owner could be exempt on religious grounds from otherwise universal laws about health care coverage? What is this about, at base, other than believing: 1. corporations are people, 2. their first amendment rights can supersede those of actual people against whom they are directed, and 3. the religious claims of one religion are more valid than that of another?
Joseph Campbell’s “The Hero with a Thousand Faces” takes on the task of identifying the common themes and story elements that are evident in some of the greatest stories told throughout history and across a variety of cultures. It captures the tale of the hero’s journey and the types of events that transpire to turn an unremarkable person into a hero. The book is most famously known for its impact on the original Star Wars trilogy as George Lucas admitted that he didn’t think he could have written Star Wars without having first read Campbell’s book.
Campbell identifies that one of the major themes that plays out through these great myths and legends is that the hero, before they can effect any meaningful change, must first destroy their entire self and rebuild something new, something greater. As these stories all offered teachable lessons for real life, a major takeaway that Campbell points out is that our belief systems are not traits to be reinforced and upheld. Instead, we need to constantly challenge, deconstruct, and reform our own beliefs, especially the beliefs that we hold closest to heart, in order for us to become our own hero. Maybe we could all do a bit better on this task, I know I certainly need to drastically improve on challenging what I believe. Our most powerful judges really need to have at least some ability to self-reflect in order for the court to effectively carry out justice.
I really can’t recommend Campbell’s book enough simply for how enjoyable it is to read and how much influence it still holds over the writers in Hollywood. If you watch closely, you can identify very specific elements of Campbell’s work in a number of movies. It’s sort of a fun game to play. In a case like Alex Garland’s “Annihilation” based on Jeff Vandermeer’s novel (which I have not read), the film uses nearly every element of Campbell’s work to tell the story. Having read Campbell’s book first almost certainly made the movie much more entertaining for myself than it otherwise would have been.
For those who may not have the time to invest in his book, you can always watch his interviews with Bill Moyers.
The close with a bang is a bit disrespectful of the process we must all go through in our current hyper state. However overall the article is very insightful and well written. The Close with a bang had me wound up enough that I had almost forgotten about the rest of the article. I suggest a soft peddled bang would be more respectful of the emotional state we are all in. However yes as a journalist you must sell copy and cannot do it in many situations without a bang or two. Please Disregard this criticism if you must.
Prof. H, the following: “not least of which is the prospect that her religious views “might” creep into her jurisprudence with regard to women’s reproductive rights”
Why not just state that you believe The Honorable Barrett wants to overturn Roe vs Wade and be done with it?
I have never met Mrs Barrett so I don’t know her personally. I can say that your reservations are justified. First of all I find it disgusting that the Senate President is changing his tune about nominating supreme justices because his party is in power. But I guess you can call that the spoils of power.
What I will say about her being a Catholic and a Supreme Court nominee, I don’t care what she says during the nomination process, if you are a practicing Catholic and aware of the churches teachings there is no wiggle room, abortion is and always will be wrong. Now people can and do disagree with the teaching which is fine, there was a moral conscience clause that some people used after Vatican 2 but Pope John Paul 2 cleared it up by coming up with a teaching that abortion is wrong. So the Catholic teaching still is that if you are in a position of public power and you do something that goes against any teaching big or small you can risk eternal damnation so it would seem to me that if she does get nominated that she would not have a choice but to overrule Roe v Wade.
I do find it wrong that she can call herself an originalist.
Because if you really wanted to take our country back to its roots, you would have to rule against any amendment in the constitution that wasn’t part of the original constitution in the 1700’s , which I believe was your reference to a modern state.
And she just may surprise her detractors by having a mind of her own, be smart enough to see through trump and his shenanigans and be a proud jurist to carry on RBG’s work. God (and Alarik) sometimes work in mysterious ways. It may be a stretch of faith at this point but i am not going to prejudge the judge and hope I’m not wrong.
My wife, who has never been interested in politics, asked today during the breakfast: “Did you hear about this Supreme Court nomination? That’s ridiculous”.
I hope this case will force some swing voters and non-voters to rethink what they should do on November 3rd.