• Cole Feix

The Barrett Confirmation: What to Know and What to Watch For


Judge Amy Coney Barrett, 2020 | Photo: The White House

Let the Hearing Begin

This morning, Judge Amy Coney Barrett will read her opening statement and begin her confirmation hearing before the Senate Judiciary Committee. Here’s the schedule for the wee: this morning members of the Senate Judiciary Committee will read their opening statements, tomorrow and Wednesday they will ask questions, and on Thursday they will hear from expert witnesses and hold a closed session. After that, Sen. Lindsey Graham can move for a vote to send the nomination to the full Senate.


Accounts of Barrett’s intellect, sterling character, and judicial record continue to surface. It almost comes as a surprise to learn that Amy Coney Barrett is not a controversial judge. She has been in the majority 98% of the time in published merits decisions. She has written 79 published majority opinions and has been joined unanimously in 95% of them. As a Circuit Court judge, she has never had an opinion reversed by the Supreme Court.


In her opening statement, Barrett will emphasize her commitment to the rule of law, her family, and the integrity of the Supreme Court. She will talk about writing opinions thinking about both sides of the issue; “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.” In her conclusion, she will honor the legacies of Justices O’Connor and Ginsburg and thank the president for the opportunity to the fifth woman confirmed to the US Supreme Court.


Barrett’s confirmation hearings will be one of the most significant events in American life outside of the election. As true as it is that the court should not be as important as it is, judicial activism has become the legislative method of choice on the left, and increasingly on the right. Confirming Barrett to the Supreme Court will rebalance the court, protect religious liberty, and secure the rule of law for a generation.


What to watch for:


Religion

Many of the attacks on Barrett hover around her religious beliefs, particularly the question of whether or not she can separate her religion from her role on the court. Her Catholicism has been a focal point of attacks, despite the fact that many of the Democratic leaders are Catholics, including the speaker of the house and the Democratic candidate for president. Samuel Gregg has argued that it’s only a particular kind of Catholic who faces the scorn of the Democratic party, those who believe the church’s teaching on the sanctity of human life, abortion, euthanasia, and the death penalty. For these Catholics, he argues, “Anti-Catholic bigotry” is alive and well.


On the other side, religious beliefs are suspect because they may impose the morality of the few on the many. This is an ideological dispute, but it is also a dispute over the nature of truth. Progressives presuppose a religion-free space in which reason and logic dominate untainted by radicalism or dogma. This “common sense” approach is shared by the majority of the public, preserves the liberty of all, and leads to a more fair and equitable system, they argue. The most imposing threat to these ideals is closed-minded, irrational religion.


Although questioning Barrett’s religious beliefs is seen as unpopular, Democrats have already indicated that they may pursue this line of questioning. The last time Barrett was confirmed, Sen. Dianne Feinstein criticized her religious beliefs and proclaimed, “The dogma lives loudly within you.” Senators Hirono and Harris have attacked the Knights of Columbus, a traditional Catholic organization, in previous hearings. Barrett’s membership in the People of Praise has drawn criticism in the media as well.


Originalism

On the other side, expect Republicans to emphasize Barrett’s originalism, her character, and her commitment to keeping her religious beliefs separate from her judicial theory. Originalism is a judicial philosophy championed by the late Justice Antonin Scalia. He believed that the Constitution should be interpreted according to the original public meaning. This position makes intuitive sense. In a democracy, the people vote for the laws, or, in a representative democracy/republic they vote for representatives who make the laws, and the laws of the country are legitimated by the consent of the people. Thus, the laws mean what the people thought they meant when they voted for them. Judges are tasked with interpreting the laws and reviewing new statutes, not expanding the meaning of existing statutes to fit around our modern conceptions; that is the job of Congress.


Judges are interpreters, not legislators. Scalia described judging as protecting the “general rule of law” over the “personal discretion to do justice.”


In theory, originalist judges are non-partisan; they interpret the laws not according to what they believe to be true, but according to what the laws meant when they were ratified. This is a hedge against judicial activism. Judge Barrett has already broadcast her judicial philosophy in articles and opinions, and in her acceptance speech when she said, “I clerked for Justice Scalia more than 20 years ago, but the lessons I learned still resonate. 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… His judicial philosophy is mine, too.”


This morning Albert Mohler released an episode of “Thinking In Public” with constitutional scholar Ilya Shapiro. They talk about the history of the Supreme Court and the political history of the confirmation process. He argues in his new book, Supreme Disorder, that the warping of the separation of powers that has resulted in the “supreme disorder,” where the courts and administrative agencies are doing the bulk of the legislation.


As Sen. John Cornyn stressed this morning, there should not be “Obama judges” or “Trump judges” or any partisan judges. There should only be judges committed to upholding the rule of law and the Constitution. At least in theory, this is exactly the position that originalism is committed to defending.


Obamacare

Democrats have decided to focus on the Affordable Care Act case coming to the Supreme Court in November. Even this morning, Democratic senators have adorned the committee room with blown-up pictures of women who have suffered medical hardships, lost their insurance coverage, and “who don’t have control of their own bodies” as Sen. Leahy said in his opening statement.


In Sen. Feinstein’s opening statement, she set the tone for the hearings: this will be about the ACA. The Democrats have framed the hearings around this single case: if Barrett is confirmed, millions will lose their coverage, pre-existing conditions will not be covered, and people will suffer. Sen. Leahy followed suit, and it’s likely every senator on the left will continue the pattern in ten-minute increments throughout the day.


Abortion

The core issue to Barrett’s confirmation is abortion. The legacy of Roe v. Wade hangs over the court and it will be the most serious point of contention in the hearings. As a Catholic, Barrett is personally against abortion, but as a judge, she has repeatedly stated that her job is to interpret the law. She has also spoken and written about Roe as a precedent, but is no shoo-in to overturn it. It depends on the case and on the law.


Conservatives have maintained that Roe v Wade is judicially illegitimate, an example of judicial activism. There is no constitutional right to abortion. The options should be allowing the states to take up the issue or legislating in Congress. Liberals maintain that Roe is settled law. The Supreme Court ruled that there is a Constitutional right to abortion based on the “right to privacy” in the due process clause in the 14th Amendment.


Every conservative nominee since 1973 has been asked about whether or not they would overturn Roe. As a matter of etiquette, judges do not speak about individual cases and rulings during the confirmation hearings. In the past, Justices Roberts, Gorsuch, and Kavanaugh have called the ruling “settled law” and a ruling “precedent.” Expect Barrett to follow suit.


Politics

Confirming Supreme Court justices is a political enterprise, and whether or not that has been true throughout our history, it’s certainly true now. One of the features that has come to define our politics, unfortunately, is widespread dishonesty over what’s actually happening. The key way to do this is to control language. If you control what words mean, you hold the power. One of the most effective tools is political euphemism. Notice how often politicians don’t call things what they are. “Defund the Police” means reform and increase the funding of local police. “Mostly Peaceful Protests” have caused billions of dollars of damage across American cities. “Women’s Healthcare” means access to abortions. This concept has been volleyed across the aisle as “gaslighting,” lying without the moral connotation.


You can see the tactic in the way the language around the Supreme Court is being made over in real time. Last week, “court packing” meant adding justices to the Supreme Court. It’s what FDR attempted to do in 1937, it’s what Pete Buttigieg campaigned on earlier this year, it’s what the Democrats repeatedly threatened to do if the Republicans confirm Amy Coney Barrett.


Now it is beginning to mean something else. Look at how this issue is changing in real time. On Saturday, Joe Biden said the people “don’t deserve to know” what he thinks about packing the court. He’s been consistently avoiding the issue for weeks, presumably to straddle the factions in his own party. But now there’s a new strategy, change what “court packing” means and you no longer have to avoid the question. In her debate with VP Pence, Sen. Kamala Harris suggested that the Republicans are the ones who have been “packing the court” with conservative judges.


The media took this line and ran with it. In The Washington Post, Ruth Marcus argued that the GOP has been “packing the court in plain sight” by appointing and confirming conservative judges. Sen. Dick Durbin said the Republicans have been “packing the court” for three years. In a speech later on Saturday, Joe Biden called the confirmation of Barrett unconstitutional and said, “The only court packing going on right now is going on with Republicans… It's not constitutional what they’re doing.”


On Sunday morning, Jake Tapper pressed Biden’s Deputy Campaign Manager Kate Bedingfield on Biden’s claims. When she argued that the people need a say in the Supreme Court nominees, Tapper responded, “they elected the Senate.” When she cited polls, he retorted, “Constitutional doesn’t mean I like it or I don’t like it. It means it’s according to the US Constitution. There’s nothing unconstitutional about what the US Senate is doing.” He’s absolutely right.


Language matters. Packing the court means adding justices, and this is precisely the measure Democrats have proposed and that Biden and Harris have refused to speak about. It’s the issue Sen. Ben Sasse commented on this weekend, saying, “It's grotesque that Vice President Biden won't answer that really basic question. And it isn't just one branch of government... What they're really talking about — or refusing to talk about — is the suicide bombing of two branches of government.”


Part of navigating the political tides of the world today is paying attention to language. What do words mean? What do people mean by them? As the week goes on, what the language. How does it change? What does it mean?


Bombshells

If we can be sure about anything, it’s that there will be bombshells this week, likely timed before key votes. If the Kavanaugh hearings are any template - thankfully, it looks like this confirmation process will be milder all the way around - accusations will be geared more toward delay than disqualification.


The most likely spoiler is Covid. Although the hearings can be conducted remotely, Republican senators must vote in person some time in the next three weeks on the Senate floor. That means exposures to Covid pose the greatest threat to confirmation. This may sound cynical, but look for news that someone around key GOP senators has tested positive days, or even hours, before key votes. Keeping even two senators off the floor could stall the vote for weeks at a time.


Delays aside, the Senate is poised to confirm Amy Coney Barrett by the end of the month. She will be questioned and vetted this week. The Republicans have both the right and the votes to confirm her. By the end of October, the US Supreme Court will be back to capacity and will have an excellent new justice on the bench.




Cole Feix is the founder and president of So We Speak.

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