President Trump’s plan to appoint Justice Amy Coney Barrett to replace Ruth Bader Ginsburg on the Supreme Court on Saturday is a shocking political spectacle. The official announcement on Saturday will come the day after Ginsburg became the first woman and the first Jew to lie in state on Capitol Hill, and less than 40 days before the presidential election.
In 2016, Republicans refused to consider President Obama’s Supreme Court candidate, Justice Merrick Garland, 260 days before that year’s election.
The appointment is also a remarkable achievement for the religious right. In less than four years, Trump will have selected three of the court’s nine judges (and notably the three youngest judges, who are likely to have the longest terms on the bench), all of whom are religious conservatives affiliated with ( or chosen by) the Right Federalist Society.
Like Justice Garland, who was denied even a hearing, Justice Barrett is unquestionably qualified. She has written extensively scientific articles on a wide variety of legal and philosophical issues and, unlike some recent Trump nominees, appears to have an impeccable ethical record.
But Barrett is also an arch-conservative who has espoused troubling views about the intersection of her personal beliefs with her role as a judge, and who will fundamentally change the American legal landscape on a number of issues.
Obviously, abortion is the most publicized of these, and it’s easy to see why all of America’s major anti-abortion organizations hailed Barrett when she was named to the Seventh Circuit. She criticized Roe vs. Wade as “judicial decision” and “erroneous decision”.
And at a Notre Dame Law School event in 2013, she asked, rhetorically, “Would it be better to have this battle in state legislatures and congresses rather than in the Supreme Court?”
This, of course, is inherently an anti-choice position. We’re not asking whether it would be better or worse for a state to violate constitutional rights – for Mississippi to ban Islam, for example, or for Vermont to ban the Republican Party. If a constitutional right is in question – as the Supreme Court held Roe deer– then, the whole point of judicial review is that it doesn’t matter if it would be “better” for the legislatures to fight it.
Barrett made a similar point regarding same-sex marriage. At a conference in 2016, she agreed with dissidents Obergefell v. Hodges, the case that struck down bans on same-sex marriage, arguing that if legislatures could grant rights to same-sex marriage, it was not for the courts to decide. “It’s really who decides the issue,” Barrett said.
Again, to say that it is a matter of “who decides” is to conclude that there is no constitutional right involved.
Likewise on other issues, in which Judge Barrett has, without a single exception I could find, taken the right-wing perspective: Obamacare (“Chief Justice Roberts pushed the Affordable Care Act to the fore. – beyond its plausible meaning ”), immigration, guns, and others.
Finally, as has been widely reported, Barrett is a staunch religious curator. She is a member of a charismatic Catholic group called “People of Praise,” which has unusual practices and teaches extremely conservative social teachings about men and women.
By itself, none of this matters since Barrett’s religious beliefs should not affect his suitability as a Supreme Court judge.
However, Barrett has made several disturbing statements regarding the impact of religious beliefs on the roles of lawyers and judges. More famous, she said in 2006 that a legal career should be “a means to an end”, namely “to build the Kingdom of God”. Now, despite a lot of liberal tweaking about this comment, that alone is not that problematic. It can simply mean building a fairer and more equitable world, as the Bible demands. Indeed, Judge Ginsburg herself had received biblical injunctions to pursue justice on the walls of her chamber.
But when Barrett’s “means to an end” statement is placed in the context of other statements she has made, it raises questions. For example, in his first law review article, published in 1998, Barrett wrote that “Catholic judges (if they are faithful to the teaching of their church) are morally barred from applying the death penalty.”
This is an unusual position, suggesting that a judge cannot discharge his public duty if he has a personal religious belief in him. Ironically, if this principle is applied to all cases in which the Catholic Church has expressed moral positions, it could force Judge Barrett to recuse herself from cases involving abortion and homosexuality, as well as the death penalty.
During her Seventh Circuit confirmation hearing, Barrett said she did not think it was “legal for a judge to impose personal opinions, whatever their source, on the law.” But that seems at odds with his stated stance on the challenge – unless “personal opinions” do not include moral obligations arising from religious faith.
These are not mere philosophical questions, and if Democrats choose to participate in this masquerade of a confirmation process, they should be examined in detail – with more subtlety, hopefully, than the statement by Senator Diane Feinstein. to Barrett during his last confirmation hearing that “dogma lives strong.” in you ”, which turned on you and became the best PR Barrett could have received.
Rather than questioning Barrett’s faith, Democrats should focus on his statements about how it influences his judgment.
To take an example, in a few weeks the eight-judge Supreme Court will hear a case on whether taxpayer-funded adoption and foster care agencies can discriminate against people if the organization is motivated by a creed. religious.
Based on decisions in other cases, Justices Alito, Gorsuch, Thomas and Kavanaugh are sure to allow this discrimination in the name of “religious freedom”. Judge Roberts’ position is more difficult to predict. Judge Ginsburg would likely have sided with victims of discrimination rather than the religious organization that discriminates.
What about a Barrett judge?
Based on Barrett’s statements on religion, her track record as a judge, and her backers of all major right-wing organizations, it seems certain she would side with the court’s conservatives, allowing agencies to adoption and foster care to deny gays, Muslims or any other group of people they felt religiously obligated not to serve.
Multiply that by thousands of similar cases in federal and state courts: religious exemptions for companies denying gay or transgender people, additional restrictions on same-sex marriage equality, more restrictions on abortion providers and women who fail. abort, religious exemptions laws on employment discrimination, funding of religious schools and countless other issues.
These, along with abortion and LGBTQ equality, are some of the specific questions Democrats must raise, if they are to honor this process by participating in it.
There is no doubt that Justice Barrett is qualified to sit on the Supreme Court. But once she does – since her confirmation seems almost assured – she will change her forever.
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