Why the Senate should CONFIRM Judge Barrett by M. Movsesian

[TaPinLu]

Judge Amy Coney Barrett, President Trump’s nominee to succeed the late Justice Ruth Bader Ginsburg, is appearing before the Senate Judiciary Committee this week. Her confirmation seems very likely. Unfortunately, the Supreme Court confirmation process has become a predictable and partisan affair. At the moment, Republicans have the votes, now that filibusters no longer apply to Court nominations. But Judge Barrett deserves better than a partisan endorsement. She easily qualifies for a seat on the Court; there is nothing improper—or, as some have wildly asserted, unconstitutional—abo ut confirming her now; and objections that she poses a unique threat of judicial activism are, as lawyers say, hard to credit.

Judge Barrett is a well-regarded legal scholar, with expertise in constitutional law and federal courts. Her reputation as a thoughtful member of the textualist school predates her current celebrity. As to her professional path, she placed first in her class at Notre Dame Law School, served as a clerk at the D.C. Circuit and then at the Court (for Justice Antonin Scalia), worked in private practice at a prominent D.C. firm, and spent many years on the faculty at Notre Dame. She has served as a judge on the Seventh Circuit for a couple years now. No one can doubt her acumen, and actually no one does. The objections to her nomination relate to other concerns.

I became acquainted with Judge Barrett when I taught at Notre Dame Law School many years ago, when she was beginning her academic career. Already she had a reputation as a rising star—a careful thinker and writer and a great colleague and teacher. She struck me then as one of the most genuinely good people I had ever met—not just nice, but good. Everyone who has written about her, from every walk of her life, says the same thing. That’s not itself a reason for her to be on the Court, of course; as a progressive friend of mine remarked, Merrick Garland is no doubt a good person, too. But having a genuinely humble, kind, and compassionate person on the bench is not unimportant.

Now, about the objections to her nomination. One objection relates to the process—specifically , to the fact that President Trump has nominated Judge Barrett only weeks before a presidential election, and to the fact that Senate Republicans refused to schedule a vote on the nomination of Judge Garland for almost a full year before the last presidential election four years ago. The critics have a point; Republicans have switched sides. But Democrats would no doubt insist on a confirmation if they held the Senate and a Democrat were president. Hypocrisy is bipartisan.

Moreover, as Dan McLaughlin explains at National Review, the historical record reveals Republicans are not doing anything unusual. On 29 occasions, presidents have made nominations in election years. In 19 of them, the president’s party also controlled the Senate, and in all but two of those, the Senate voted to confirm the nominee. (In one very famous episode, a lame-duck president nominated a chief justice, whom a lame-duck Senate confirmed, notwithstanding a new administration and Senate waiting in the wings: that was Chief Justice John Marshall). On ten occasions, the opposition party held the Senate, and in only one of those cases did the Senate vote to confirm, though two nominations were confirmed after the election, when the president’s party won.

In short, the historical evidence reveals that when the president’s party controls the Senate, election-year nominations tend to succeed, and when the president’s party doesn’t, nominations tend to fail. McLaughlin concedes that no nomination has come so close to a pending election as this one, but argues that is because the Senate used to go into recess in the summer and fall (a custom we should consider reviving), so that consideration of a nominee would not have been possible. In short, although Democrats can rightly complain about Republicans’ situational ethics, there is a long history of such behavior, by both parties.

Another objection is that Judge Barrett will be an activist. Here the argument seems to be that, as a faithful Catholic and member of an ecumenical charismatic group, she will inevitably decide cases on the basis of her religious convictions rather than the law—“the dogma lives loudly within you” and so on. But no evidence of this sort of thing exists in her record as an appeals judge, though that record is, admittedly, brief. In her one essay that raises the subject, Judge Barrett suggests that in cases of conflict she would recuse herself rather than impose her Catholic convictions in place of the law, a position that arguably should concern Catholics more than non-Catholics. And, as my colleague Marc DeGirolami has explained, her writings about stare decisis—the idea that judges should stick to decided cases and not overrule them, even if judges think those cases are wrong—are well within the American legal tradition.

Moreover, as Judge Barrett pointed out in a speech at Hillsdale College last year, keeping one’s ideology out of judging is not a problem limited to Catholics, or believers generally. When “you think about the debate about whether someone’s religion has any bearing on their fitness for office,” she told the students, “it seems to me that the premise of the question is that people of faith would have a uniquely difficult time separating out their moral commitments from their obligation to apply the law.” But that isn’t true. “People who have no faith, people who are not religious” also “have deeply held moral convictions,” she said. “And it’s just as important for those people to be sure . . . to set aside . . . personal moral convictions . . . and follow the law.”

The extent to which judges can and should keep personal moral convictions out of the law is of course a matter of debate. Some constitutional doctrines invite judges to import their convictions into the law, or at least make it difficult for judges to avoid doing so. One example is the “compelling interest test” in free-exercise law, which asks judges to evaluate whether the state has a compelling interest that justifies a burden on religious freedom. But there is no reason to think Judge Barrett would have a harder time setting aside her personal convictions than a secular justice would have setting aside his or hers. Besides, progressives have been arguing for decades that the bench should reflect diverse life experiences, which help judges apply the law in empathetic ways. It’s a little late in the day to argue such a thing is unthinkable.

Three years ago, in connection with the Gorsuch nomination, I wrote that no one really knows how a new justice will rule over time. (That certainly has been the case with Justice Gorsuch!) It takes at least three years for a new justice to find his or her voice. We will have to see how Justice Barrett evolves, if in fact she is confirmed. But that the Senate should confirm her is not a close question. It should.