On the Bench

 “The integrity of the upright shall guide them: but the perverseness of the transgressors shall destroy them.” Proverbs 11.3 KJV

She is the Federalist Society’s darling, and for excellent reason, she is by far one of the purest Constitutional Originalists I have read in over thirty years. She goes much further than her mentor Scalia ever did in his interpretations. She absolutely terrifies me, in part because she is bright, pragmatic but even more, she is an absolute ideologue. She hides it well; she dances brilliantly. Still, it is there, and she is the antithesis of everything Ruth Bader Ginsberg stood for. Yet after hearings that were polite and without real merit, Lindsey Graham, without qualms and without a full committee, pushed her nomination to the full Senate for a vote that will be taken on Monday 26 October 2020. For those of you that are counting, that is six days before the next president’s election. She will be the next Justice unless some GOP members of the Senate find their moral backbone and say NO to Donald Trump, Mitch McConnell and the rest of the spineless enablers and say YES to the American People.

Just to make clear, I am not an Attorney and have no formal legal training. What I have is decades of watching the court in action and reading legal briefs and scholarship. It is an interest of mine. Do I get it perfectly? Absolutely not. So for those of you who know more than me, feel free to correct my understanding. What follows is simply my understanding of what I have seen and been able to discover of Judge Amy Coney Barrett.

I watched three days of hearings before the Republican-led Senate Judicial Committee. Farcical is the most polite term I can come up with. Three days of Republicans, grandstanding, campaigning and praising her laundry skills, mothering skills and, of course, the brilliance of her legal mind as an afterthought. The comparisons to Ruth Bader Ginsberg were, for most of us, insulting. She is not now and will never be, except perhaps in the mind of the Federalist Society and those who put her on the highest court in the land, comparable to the Notorious RBG. The truth of the matter, Amy Coney Barrett, is the dream jurist of the Right and a nightmare for the rest of us. Most notable for me and many others were three items she would not commit her ‘brilliant’ legal mind too:

• A president could not unilaterally change or delay an election.
• Voter intimidation is illegal under any circumstance.
• A president cannot pardon himself.

Add to the above, when pushed by several Senators on recusal, she refused to commit. Despite the president’s public statements of his reason for fast-tracking her nomination, his desire to have her on the bench to tip the balance in his favor when he challenges the election outcome should he lose. 

It is difficult to truly explore Judge Barrett’s legal thinking. She has only been on the Seventh Circuit Court of Appeals since October 2017, three (3) years. Prior to her short time on the bench, she was a Professor of Law; much of her time in this role was spent at Notre Dame, where her published writings are protected. Her limited exposure to litigation was in private practice, with the only notable case being as research assistant on Bush v. Gore. She never argued a case, certainly not in front of the Supreme Court. I do not want to entirely dismiss her; she clerked on both the Court of Appeals and the Supreme Court. She has earned a great deal of praise for her research, writing and teaching. She is beloved by her students. However, none of this makes her ready for prime time; none of this makes her a worthy inheritor of the seat left vacant by Ruth Bader Ginsberg.

Consider some of her available publications first; one that stood out for me was Catholic Judges in Capital Cases. While there were no surprises, there was a significant discussion surrounding the loyalty owed to the Church and its teachings. There wasn’t a suggestion that the judge should ever attempt to align the law to the Church, but that their moral behavior must align instead; ultimately, where the two did not or could not recusal was the answer. What does this mean in cases she might hear in the future? Either she will ignore her own advice, or she pushes the agenda, we all believe she has. Areas where the Church and the law are out of alignment? Abortion, IVF, several Civil Rights areas, including protections for LGBTQ people (e.g., housing, medical services, marriage, adoption). What is her answer? She has said she can judge without bias; however, I have to ask the question based on this single item. Is she?

The next read for me was actually three separate essays written over five (5) years on the subject of Stare Decisis[1]. The Stare Decisis doctrine directs the court to stand by the established precedent set by the court. The court rarely overturns its own precedent, though it has, in some cases, which signifies it has a new way of looking at a legal issue that has been presented. Based on her writing, though, it seems she is only supportive of courts and judges taking the initiative of ignoring precedent when that precedent is not aligned with the court or the judge’s thinking. It is frankly a very murky area. An example of a previous court ignoring precedent is Brown v. The Board of Education (1954), where the Separate but Equal doctrine established in Plessy v. Ferguson (1896) was ultimately overturned. This is an example where a Super Precedent existed and was challenged. During her hearings before the Judicial Committee, she would not say whether she agreed with the Brown decision.

Judge Barrett says she does not believe Roe v. Wade is a super precedent simply because of the number of challenges. For an interesting read on precedents and super precedents, try this one, which provides an overview of how we should view them[2]. The reality is it would be inconvenient for Judge Barrett to view Roe as a super precedent, just as it would be inconvenient for her to recuse from the ACA battle that will be her first Court case on being seated. She has written more than once regarding the ACA and has even taken issue with a decision by Justice Roberts to uphold the ACA.

In my reading, I found a common theme in Judge Barrett’s view of the courts’ ability to create common law[3], even overruling legislative authority. I was fascinated by this view as it derives from her reading of the Constitution and her ‘Originalist’ stance. While I think we all agree, we have separate but equal branches of government, each with their own powers, now we have a nominee who will shortly be seated on the highest court view that court with the ability to legislate from the bench. In my opinion, she puts us all in great jeopardy.

I have had several discussions about Judge Barrett since her nomination. In my mind, her own words condemn her. Listen to what she said in 2016 at the death of Antonin Scalia. I believe those we put on the Supreme Court should not only be legally able, but they should also be morally and ethically sound. Someone said Presidents serve for 4 years, not 3, and certainly not 5. Her nomination extends the current term of Donald J. Trump to five years, even if he is by some terrible chance re-elected her nomination and confirmation should wait until after November 3.

If she had an ounce of moral fiber, she would withdraw herself until after the elections.

[1] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1219801

https://scholarship.law.nd.edu/law_faculty_scholarship/767/

https://scholarship.law.nd.edu/law_faculty_scholarship/450/

[2] chrome-extension://nacjakoppgmdcpemlfnfegmlhipddanj/http://www.georgemasonlawreview.org/wp-content/uploads/2014/03/14-2_Sinclair.pdf

[3] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1014661.