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.