President Trump announced on Saturday the nomination of federal Seventh Circuit Court of Appeals Judge Amy Coney Barrett, 48, to fill the late Justice Ruth Bader Ginsburg’s seat on the Supreme Court. The Senate Judiciary Committee, led by South Carolina Republican Senator Lindsey Graham, plans to conduct four days of nationally televised hearings during the week of October 12th. Republicans controlling the Senate have the votes to confirm Judge Barrett, which could happen as early as the end of October – a few days before the election.
The Democrats are spoiling for a fight. They will reprise their tired argument that it is improper to fill a vacant Supreme Court seat so close to the presidential election. At the same time, knowing that they don’t have the means to stop the confirmation cold, Democrats hope to score political points, particularly with suburban college-educated women, on the hot button issues of health care and abortion.
Expect Democrats to charge that Republicans want Judge Barrett on the Supreme Court right away to provide a decisive vote in a case brought to end Obamacare, which will be argued at the Supreme Court a week after the election. “A vote for Amy Coney Barrett is a dagger aimed at the heart of the health care protections Americans so desperately need and want,” Democrat Senate Minority Leader Chuck Schumer said Saturday night. Abortion rights will also likely play a big role during the hearings as Democrats charge that Judge Barrett will vote to overrule Roe. V. Wade.
Introducing Judge Barrett in the White House Rose Garden, President Trump called her “a woman of unparalleled achievement, towering intellect, sterling credentials, and unyielding loyalty to the Constitution.” He added, “As Amy has said, ‘Being a judge takes courage. You are not there to decide cases as you may prefer. You are there to do your duty and to follow the law wherever it may take you.’ That is exactly what Judge Barrett will do on the U.S. Supreme Court.”
Judge Barrett began her own remarks accepting the nomination with praise for the late Justice Ruth Bader Ginsburg as “a woman of enormous talent and consequence.” Judge Barrett mentioned Justice Ginsburg’s friendship with Justice Antonin Scalia, her mentor, despite their sharp ideological differences. “These two great Americans demonstrated that arguments, even about matters of great consequence, need not destroy affection,” Judge Barrett said. “In both my personal and professional relationships, I strive to meet that standard.”
Judge Barrett left no doubt on which side of the judicial philosophy divide she stands. “I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate,” she said. “His judicial philosophy is mine too: A judge must apply the law as written. Judges are not policymakers, and they must be resolute in setting aside any policy views they might hold.” In short, Judge Barrett believes in judicial restraint, not legislating from the bench.
Judge Barrett’s judicial clerkships, sterling academic record as a student and professor at Notre Dame Law School, and tenure as a federal Court of Appeals judge have won her praise from people she has worked with irrespective of their political affiliations. Judge Barrett’s love for her husband and seven children – including one who suffers from Down Syndrome and two adopted children from Haiti – is beyond reproach.
The Democrats’ far-left base is agitating for a no holds barred take down of Judge Barrett. But the kind of vicious ad hominem attacks on Judge Barrett’s personal life and character that the nation witnessed during the Brett Kavanaugh hearings may elicit significant backlash, to the Democrats’ detriment in the upcoming elections. “The nominee will be challenged, and that is appropriate to challenge the nominee,” Senator Graham said Saturday night. “But if they treat Judge Barrett like they did Justice Kavanaugh, it will blow up in their face big time.”
Judge Barrett’s more strident enemies on the left may try to dig up lurid allegations of personal misconduct at the last minute, as they did with Justices Clarence Thomas and Kavanaugh. More likely, however, Senate Democrats will revert to the tactics used back in 1987 to vilify Judge Robert Bork, making the word “bork” a part of the popular lexicon. We can expect Schumer and his fellow Democrat obstructionists, aided by their friends in the media, to caricature Judge Barrett as a rigid right-wing extremist with views on public policy way outside of the American mainstream.
Amy Coney Barrett already endured the Democrats’ third degree during her Seventh Circuit Court of Appeals confirmation hearing in 2017. Senator Dianne Feinstein, the ranking member of the Senate Judiciary Committee, claimed that Barrett, a devout Catholic, had a “long history of believing that religious beliefs should prevail.” Noting that religion has “its own dogma,” Feinstein told Barrett that “the dogma lives loudly within you, and that’s of concern.” Feinstein ripped up the Constitution when she applied a religious test in judging Amy Coney Barrett’s fitness to sit on the Court of Appeals.
Barrett replied that she did not believe it was “lawful for a judge to impose personal opinions, from whatever source they derive, upon the law.” The Senate confirmed her by a vote of 55-43, with three Democrats joining the majority.
There won’t be any Senate Democrats supporting Judge Barrett to replace the late Justice Ginsburg on the Supreme Court. Senator Chris Coons, a moderate Democrat, has said that he will not focus on Judge Barrett’s faith in his questioning but will vote against her based on her public record as a professor and judge. However, left-wing Democrats and their friends in the media are likely to paint Judge Barrett as a religious extremist. As supposed “proof,” they will try to turn some of Judge Barrett’s past quotes on religion against her.
For example, expect leftists to bring up then-Professor Barrett’s talk to the graduates of Notre Dame Law School, when she reportedly said that a “legal career is but a means to an end . . . and that end is building the Kingdom of God.” If so, it will be the height of hypocrisy. The left-wing secularists did not utter a peep when Joe Biden invoked “the Gospel of Matthew” and “scripture” to explain what he meant when he declared that he is “running to restore the soul of our nation.”
Judge Barrett’s opponents will accuse her of disrespecting judicial precedents, warning that she will have no compunctions in declaring Obamacare unconstitutional, even though it has already been upheld by the Supreme Court, or in overruling Roe v. Wade.
Regarding abortion, Judge Barrett joined in dissenting from a majority opinion striking down a state law tightening the requirements for notifying the parents of minors seeking abortions even before the law went into effect. In another case, Judge Barrett joined a dissent from a majority opinion striking down one part of a law that would have banned abortions sought solely because of the sex or disability of a fetus and another part that would have required abortion providers to bury or cremate fetal remains. The Supreme Court upheld the validity of the latter requirement but refused to hear the state’s appeal of the Seventh Circuit decision that invalidated banning abortions sought for the specific reason of the fetus’s sex or disability.
Judge Barrett’s willingness to side with the state in regulating abortions is a far cry from eliminating existing constitutional protections for abortion altogether. Judge Barrett is on record as saying that “I don’t think abortion or the right to abortion would change. I think some of the restrictions would change … The question is how much freedom the court is willing to let states have in regulating abortion.” Pro-choice fanatics don’t want the Supreme Court to give the states any leeway in regulating abortion – not even late term abortion near the moment of birth.
Then there is the Affordable Care Act, known popularly as Obamacare. Judge Barrett’s opponents are desperately trying to convince the American people that Judge Barrett would vote to dismantle the Affordable Care Act if confirmed to the Supreme Court. Their supposed “proof” includes a law review article entitled “Countering the Majoritarian Difficulty” that Amy Coney Barrett wrote before she became a federal judge.
“Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” Barrett wrote. “He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did—as a penalty—he would have had to invalidate the statute as lying beyond Congress’s commerce power.”
Judge Barrett’s detractors are taking her words out of context. Her article did not focus on Obamacare. It dealt more generally with the principles of constitutional and statutory interpretation. She used Chief Justice Roberts’ opinion as merely one example of how courts will sometimes stretch the words of a statute beyond their textual meaning in order to reach a preferred policy result.
“Textualists interpret statutes in accord with their original public meaning,” Barrett wrote, “and maintain that their meaning is fixed until lawfully changed. Because textualists refuse to depart from clear statutory text, they would consider it wrong to twist statutory text beyond what its meaning will bear to avoid collision with a constitutional barrier.”
The Obamacare case now before the Supreme Court – 8 years after Chief Justice Roberts’ opinion that Barrett utilized to illustrate her point about how and how not to apply textual interpretation principles – deals with whether the r
The true extremists are Judge Barrett’s detractors, who believe the courts should serve as another legislative branch to enact their radical policies when our elected representatives do not fall in line.