• Law

In testimony to the US Senate Judiciary Committee, Randall Noel of the American Bar Association’s Standing Committee on the Federal Judiciary offered the ABA’s evaluation of Amy Coney Barrett as “Well Qualified” for appointment to the Supreme Court, the highest rating that it can give to a nominee. In announcing the submission, Chairman Noel stated, “Given the breadth, diversity, and strength of the positive feedback we received from judges and lawyers of all political persuasions and from so many parts of the profession, the Standing Committee would have been hard-pressed to come to any conclusion other than that Judge Barrett’s has demonstrated professional competence that is exceptional.”

Democratic Criticisms

Democratic members of the US Senate have made a big issue out of the threat that they suspect Justice Barrett’s elevation would pose to Obamacare. Stacy Staggs of Little Lobbyists stated,

“I am here today because Judge Barrett has repeatedly made statements hostile to the Affordable Care Act. A vote for Judge Barrett is a vote to take away health care. A vote for Judge Barrett is a vote to strike down the law that saved the lives of my daughters.”

Previously, then-Professor Barrett criticised the conclusion reached by Chief Justice Roberts that the Affordable Care Act’s penalty was actually a tax. This comment was seized upon by liberal defenders of the Act as signalling intend to act to overturn the ACA, although in holding as she did, Justice Barrett was no different from President Obama who famously stated that he absolutely rejected the notion that the penalty was a tax.

In all, Justice Barrett submitted 184 pages of responses to Democratic Senators’ questions on her jurisprudence to many of which she responded that as a sitting judge and as a judicial nominee, “it would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals.”

Judicial Restraint

In testimony to the Senate Committee, Justice Barrett spelled out her philosophy of judicial restraint:

“… courts are not designed to solve every problem or right every wrong in our public life. The policy decisions and value judgments of government must be made by the political branches elected by and accountable to the People. The public should not expect courts to do so, and courts should not try. That is the approach I have strived to follow as a judge on the Seventh Circuit. In every case, I have carefully considered the arguments presented by the parties, discussed the issues with my colleagues on the court, and done my utmost to reach the result required by the law, whatever my own preferences might be. I try to remain mindful that, while my court decides thousands of cases a year, each case is the most important one to the parties involved. After all, cases are not like statutes, which are often named for their authors. Cases are named for the parties who stand to gain or lose in the real world, often through their liberty or livelihood.”

She also spoke about the importance of empathy for judges, and the importance of giving a reasoned account of the decisions reached.

When I write an opinion resolving a case, I read every word from the perspective of the losing party. I ask myself how would I view the decision if one of my children was the party I was ruling against: Even though I would not like the result, would I understand that the decision was fairly reasoned and grounded in the law? That is the standard I set for myself in every case, and it is the standard I will follow as long as I am a judge on any court.

Originalism

Concerns that Justice Barrett would adjudicate as a Catholic conservative first, and an originalist second, were countered by Thomas Griffith, a retired judge of the US Court of Appeals for the DC Circuit in a statement to the Senate Judiciary Committee made on 15 October 2020:

“… for a person of faith, the judicial oath is a promise to the nation and to God that she will not do the one thing secular critics most fear: reach for outcomes based on her religious worldview. That’s how I saw it when I was on the D. C. Circuit, and every judge I know who is a person of faith sees it the same. When wearing the robe, there is no conflict between following God and following Caesar. It’s Caesar all the way down.”

He continued that her decision on the bench bear out that view of the law, as was evinced by her votes in Price v. City of Chicago, where she upheld the constitutionality of local ordinances banning pro-life protests in the immediate vicinity of abortion clinics, and in Lee v. Watson and Peterson v. Barr, which allowed federal executions, despite her personal views, not to mention Catholic church teaching, on the death penalty.

Justice Barrett has been unapologetic in her defence of originalism, saying in a previous journal article that for an originalist, “the historical meaning of the text is a hard constraint“.

In that article, she highlighted how the responsibility rests with the people, legislators and only finally justices to set right badly decided precedent when it conflicts with the Constitution of the United States.

“Justice Scalia was right to say that originalists can be pragmatic about precedent. But that pragmatism is not, as is commonly assumed, a choice to treat erroneous precedent as law superseding the text it purports to interpret. The pragmatism is one of timing. The office holder has the discretion to decide when the timing is right to correct the error. Until then, the office holder—be it the Supreme Court through the rules of adjudication or Congress with a presumption of constitutionality—can, as it were, assume arguendo that certain settled precedents are correct.”

A More Conservative Judiciary

Following the debacle of Christine Blasey’s evasive, amnesic and inconsistent testimony to Congress (which was refuted by the witnesses she herself had identified), and the public humiliation of Brett Kavanaugh, the Democrats appear to have taken a less vociferously hostile approach to President Trump’s latest Supreme Court nominee.

Instead, there is growing support for court packing among leading representatives of the Democratic party, including from Vice Presidential candidate Kamala Harris.

As recently as July 2019 however, Justice Ginsberg warned against court packing in an interview with NPR:

“Nine seems to be a good number. It’s been that way for a long time … I think it was a bad idea when President Franklin Roosevelt tried to pack the court. If anything would make the court look partisan, it would be that – one side saying, ‘When we’re in power, we’re going to enlarge the number of judges, so we would have more people who would vote the way we want them to.’”

As of 26 October 2020, 52 of the 179 Courts of Appeal justices have been appointed by President Trump, with a majority of Courts of Appeal now having a majority of Republican-appointed judges.

By contrast, in the District Courts, 51% of the bench are currently Democratic appointees.

Author: David McHutchon

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