I never wanted this to be a politics blog, at least not in any partisan sense. Rather, I hoped that this blog would concentrate on public policy, the law, and the occasional shameless book plug (go to the home page to order your copy).
However, there are times when partisan politics intrudes on the law. The nomination of Judge Amy Coney Barrett is one such instance. So let’s clear some issues up right now. First, there is little doubt, save for some cataclysmic revelation, that Judge Barrett will be confirmed and seated on the US Supreme Court by early November. There is nothing the Democrats can do about that. Republicans have the numbers so if you don’t get politics, simple math will tell you all you need to know.
Second, Judge Barrett is qualified to serve on the Court. Seriously, she is. For that matter, so am I. We both graduated from accredited law schools. We both practiced law. We both have written about the law. Granted, she has taught law for a couple of decades, whereas I taught in a public school for nearly two decades so there’s that. So it’s not exclusively about “qualifications,” they’re a given.
Third, being catholic is not, nor should it ever be, a disqualification for any public office. Given today’s opening statements, republicans built a straw man out of an issue not raised by democrats. Neither is it a virtue that she comes from the mid-west, went to a non-Ivy League law school, nor being a mother to seven children. What is important is the influence these experiences have on Judge Barrett’s view of life and the law.
In my book and elsewhere, I‘ve written that too often there is a sameness regarding the members of the judiciary in general. A group-think emerges over time, often resulting in a narrow view and application to the law to facts at bar. I think judges of diverse backgrounds and experiences enrich a court’s processes and outputs, hopefully making the law more accessible to the people.
Fourth, this is not about the oral arguments to be conducted on November 10 regarding the Affordable Care Act. Judge Barrett has stated that she thought Chief Justice Roberts’ vote upholding the ACA in the National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). Don’t get me wrong, to millions of Americans this is a crucial issue. If the ACA is struck down, well over 30 million Americans will be without health insurance, and over 100 million Americans with pre-existing conditions will pay a greater premium for whatever insurance that is available to them.
The ACA is an important issue and should be addressed and resolved by the Congress rather than the courts. But politically this cannot be done through normal processes so the opponents of the law look to Judge Barrett to deliver the lethal blow to the ACA. But that alone is not what this hearing is about.
Fifth, this is not about Roe v. Wade nor Planned Parenthood v. Casey. I will give Judge Barrett the benefit of the doubt that a devout catholic can set aside her religious belief and decide cases on their legal and constitutional merits. This is what a pluralistic democracy demands and after a quick review of her 7th Circuit decisions, at first blush it appears that she keeps her religious views in check.
So just what are the hearings over next few days about? It’s about boring but import stuff: the meaning of the constitution and its application in a pluralistic democratic society; whether the Constitution dead as Justice Scalia once said, or living as his fellow opera lover Justice Ginsburg argued; statutory interpretation, something Judge Barrett revels in as something of a wordsmith; along with the powers of the government as a whole and its co-equal branches in specific.
Judge Barrett has written extensively on the law and these writings will be fodder for discussion and debate. In my view, this is where these hearings live, in her writings about the law and what those writings reveal. Her views of the meaning, interpretation, and application of the law will undoubtedly impact each of us and our families for generations.
Let’s see how tomorrow goes...
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