If Judge Amy Coney Barrett is confirmed to serve as an associate justice of the Supreme Court, which seems all but assured at this writing, President Donald Trump will have added to another campaign promise fulfilled. In his four years in office, he has added over 200 largely originalist judges to the federal courts. This may be his most important and enduring legacy. His supporters should be pleased and it should please the Supreme Court as well for it adds a distinguished jurist with not only impeccable credentials and demonstrated intellect, but a number of other unique attributes that should add diversity of perspective and life experience to the court’s deliberations.
She is an energetic, relatively young mother of seven including two adopted children of color and a special needs child. She is a woman of faith which she proudly and actually practices unlike some cafeteria Catholics active in government. And because she exhibited such candor in responding to questions regarding her judicial reasoning, she seems believable, at least to those who know her and are familiar with her judicial record and writings, when she says that she does not allow her faith to dictate her legal judgments. The latter issue arises every time a Catholic is nominated to the high court although the Constitution prohibits considering religion as a basis for disqualifying a nominee for high office. Five Catholics already sit on the court and they, presumably, were asked the same question.
And speaking of diversity, here is a highly-educated, intelligent woman who is (gasp) a conservative and an originalist who believes that the framers of the Constitution actually meant what they wrote, not what future judges and justices suspect they might have meant or should have meant. The Constitution is not a “living” document that changes over time as values change. Rather, its words mean the same now as they did when written unless modified by the amendment process.
The court also should be pleased that the Judiciary Committee hearing was conducted with some civility and respect unlike the disgraceful behavior that accompanied the Kavanaugh hearing that began with California’s freshman Senator Kamala Harris loudly interrupting the chairman to insist that the hearing be postponed until an investigation into alleged, uncorroborated sexual misconduct of Judge Kavanaugh was completed. Still, the three days of questioning by committee senators was largely political theatre, grandstanding and campaigning with numerous interruptions by the senators if they didn’t like the responses and wanted to change the subject. They acted as if their own words and TV time were more important than the nominee’s answers to their questions. Sen. Harris has a particularly snarky way of silencing someone by saying, “Excuse me, I was still speaking,” as though the respondent should have waited for her permission to speak. And while Judge Barrett followed the Ginsberg rule that it would be wrong to say or preview how she would vote on any question the court may be called upon to decide, they repeatedly tried without success to get her to do so. She did, however, express her judicial philosophy with an openness that should make the court pleased to welcome her as a colleague.
The politicization of the Senate’s advice and consent function began, of course, with the borking of the eminently-qualified Judge Robert Bork and was followed by such spectacles as those proceedings that Justices Clarence Thomas and Brett Kavanaugh were subjected to. Both were charged, without evidence or corroboration, of sexual misconduct. The fact that four incumbent senators who voted against Kavanaugh subsequently lost their re-election campaigns, preventing a Democrat majority in the Senate in 2018, suggests that the voting public has become weary of such political assassination attempts.
Many of the questions Judge Barrett had to endure were repetitious and some were just ridiculous. One senator rambled throughout his allotted time without asking a single question. Sen. Mazie Hirono (D-HI) read interminably from sheets of paper, pausing periodically to look up to ask a question that seemed irrelevant. She lectured Judge Barrett, who was an English major as an undergraduate and whose judicial approach emphasizes textual meaning, on her use of the term “sexual preference,” which Hirono declared was considered offensive. That probably came as surprise to Joe Biden, the late Justice Ruth Bader Ginsberg and millions of others who used the term regularly and is regularly used in legal documents. Out of the blue, she asked this mother of seven in front of her family, “Since you became a legal adult have you ever made unwanted requests for sexual favors or committed any verbal or physical assault of a sexual nature?” She was asked by one senator if she was a racist. C’mon, man! She has two black children. She was repeatedly portrayed by Democrat senators as posing a threat to the Affordable Care Act which will be an issue before the court in November. But Judge Barrett made it clear that the question before the court has to do with the principle of severability; whether or not the ACA can stand without the mandate provision which was found to be unconstitutional.
If it please the Senate, can we just stop wasting time, cut to the chase and vote to confirm this obviously- qualified and brilliant woman without further political theatre and posturing?