Days 3 and 4 of these hearings followed in the same mode as the previous days.
Judge Barrett continued to display an exceptional knowledge
of the law and also continued to follow both precedent and ethical requirements
that she not comment on policy or on any
case or hypothetical that might come before her, either in her current position
on the 7th Circuit or if confirmed to SCOTUS.
The Democrats continued to ignore the purpose of the hearing – to determine Judge Barrett’s qualifications for justice of SCOTUS – and instead continued to present policy, fear mongering, and campaign rhetoric. This was true for both the questioning that occurred on Day 3 and the witness presentations on Day 4.
Day 4 began with political maneuvering by Democrats in an attempt to stop or stall the nomination proceedings. This failed, and the committee vote is scheduled for 6 days forward (as is standard for all such nominations). This time allows the Senators time to review all documents put into evidence (or, in the case of Justice Kavanaugh’s hearing, to seek or try to manufacture damning evidence; hopefully they will not repeat this here).
Day 4 also included presentations from outside witnesses. First came the American Bar Association which gave Judge Barrett the highest rating possible. This followed review of her writings, both academic and judicial on the 7th Circuit as well as interviews with members of the legal profession and others who have some relevant information about this nomination.
The ABA found Judge Barrett’s integrity impeccable. I note this because of the many implications from Democrats that she is either a liar or some sinister plant by the President or by right-wing organizations.
Following the ABA's presentation, each side provided 4 witnesses These followed the same mold as the actual senators' questioning on Days 2 and 3. The Republicans presented legal professionals including a retired judge, a law professor, one of Judge Barrett's former law clerks, and a clerk to the Supreme Court who related her own interactions with Judge Barrett while a student a Notre Dame. All spoke to Judge Barrett’s qualifications as a justice. The former student, a blind woman, also spoke to Judge Barrett’s compassion.
The Democrats, in typical form, presented witnesses who did not speak to judicial qualifications but instead furthered the fear mongering of what would allegedly happen if Judge Barrett is confirmed. Their witnesses were activists – for expansion of Medicare, for civil rights, for abortion rights and for Obamacare. Their consistent message was that Judge Barrett is somehow a threat to “the vulnerable.”
I would note that really no one, even a judge himself or herself, can predict how they will rule in a particular case. Judges, at least good ones, are not partisans or activists when they put on the black robe. Rather, they will consider the specific facts of the case before them, apply the law as it exists at the time of the dispute, and through a solid legal reasoning process will arrive at their conclusion. Because cases that come before courts, and especially before the Supreme Court, are highly contested and policy charged, there is often more than one reasonable position, and justices with differing judicial philosophies will often arrive at the same conclusion in a particular case.
What offends me is not that the Democrats have their policy views or that they prefer an activist judiciary. It is that they attempt to distort a hearing on the nomination of a justice to the Supreme Court of the United States of America into arguments about the policy and issues that the legislative body should be addressing. The members of this committee know full well that they should be looking at the prospective judge’s judicial qualifications, not whether or not she holds their policy views.
Judge Barrett’s qualifications are impeccable. Unattackable. So, the Democrats are trying to present to the American people a fully false picture of her and of what a judge does. They are campaigning. And as a taxpayer and a voter and a citizen, I am offended by this.
A few things require particular note. First is the term “originalism” as it refers to a judicial philosophy. Judicial philosophies range from more activist to more restrained. These terms - various judicial philosophies - do not necessarily correspond to political philosophies such as liberal or conservative.
The Democrats would have the people believe that originalism is some sort of draconian horror. Originalism like textualism simply means giving primary weight to the text and structure of a document – Constitution or statute; the idea is that the Constitution means no more or less than what it meant to those who originally wrote and ratified it. With that context in mind, it will be interpreted and applied to a current situation.
"Originalism" is not some hyperliteralism which will not recognize the evolution of society along with judicial precedent. Despite what the Democrats might want you to believe, the term “originalism” does not signify an intent to return the country to the 18th or 19th or even the 20th century.
Like the Constitution, enacted laws are general – they do not refer to a specific case but to general rules that govern our behavior. They represent the will of the people. A judge deals with a specific case in controversy. That is, in simple terms, there are particular people on each side of dispute. When the dispute comes before the judge, the judge must decide that case, and can only decide that case. The judge does not make general policy but applies the existing law to the specific facts of the case and resolves the dispute between the existing and specific parties.
An easy example: If a statute says it is a crime to drive a motor vehicle while intoxicated, that addresses a general circumstance. The prohibition, written by the legislature, reflects the will of the people who voted for the legislators who enacted the law. Now assume that one day Mr. X, who is undisputedly intoxicated, is sitting in his green Subaru on the side of the freeway with his engine running. That is a specific situation which might fall under the general law.
If the police cite Mr. X he might come to court and argue that he was not "driving" because he was stopped on the side of the road. The statute does not define driving, so the judge faced with this dispute will have to read the statute and determine if sitting on a roadway with a car running but not moving constitutes driving under the statute. That part of the general rule is ambiguous in this situation. The judge must decide this to decide Mr. X’s case. The judge however cannot rewrite the statute, cannot say that driving intoxicated should not be illegal, or that Subaru drivers should be exempt, or that the statute also includes bicycles and Segways.
The judge will look at the statute and its intent and apply it to this specific fact situation. If the judge decides that these specific facts constitute driving then that will become precedent for future specific cases. When Ms. Y is intoxicated and stopped on the side of a busy roadway in her red Mustang with the engine running, this precedent will now guide us to the conclusion that she was driving for purposes of the statute. If the legislature does not like this decision, if they think an unmoving but running car should not be seen as driving under this statute, it is they who can amend the statute.
Judges look at the law relevant to a particular situation and apply that law to the specific facts of a specific case. Obviously Supreme Court cases involve far more complex issues and policy concerns than the simple example above. But the principle is the same. A judge takes the existing law which is general in its language and applies it to specific facts involved in a specific controversy between specific people.
Often the general language of a statute or of the Constitution must be interpreted to determine if or how a provision applies to the specific case. Different judicial philosophies will determine how a judge goes about this process. But there is a difference between interpretation and actually creating new law. Judges should not make policy or create new law if for no other reason than that they, unlike the other two branches of government, are not elected and therefore not accountable to the people.
The Democrats also keep returning to their old saw of how this hearing is illegitimate, a sham, and somehow betraying the will of the people. It is not. This is just another of their histrionic scare tactics. One more time let me explain the obvious.
In 2016 the people elected a President whose term of office began in January of 2017 and runs until January of 2021. In 2018 (notably after the Kavanaugh hearings and his confirmation to SCOTUS) the people in the midterm elections created the current makeup of the Senate. The current Senate is in place until January of 2021. The current SCOTUS vacancy occurred in 2020, within these terms of office. It is these people who are responsible to react to the vacancy and that is what they are doing.
The Garland vacancy occurred within different circumstances but is entirely consistent with what is happening now and what has happened throughout history. The Garland nomination occurred when the Senate majority was Republican but the President was a Democrat. Responding to their electorate, that Senate did not move forward with a nomination made by the executive of the opposing party.
Historically there have been 29 SCOTUS openings in an election year. Of those, 19 were when the President and the Senate were of the same party. Of those 19, 17 were confirmed. The other 10 openings occurred when the President and Senate were of differing parties. Of those 10, only 2 were confirmed. What this tells us is that both the failure of the Garland nomination to move forward and the holding of the Coney Barrett hearings this week are consistent with the mainstream of our nation’s history and with the concept of the elected officials responding to the will of those who elected them.
The Democrats don’t want Judge Barrett on the court. That does not mean that they can cut short the legitimate term of the President and of the currently serving senators. Perhaps the people will elect Democrats for the next term (which does not begin until January 2021). If they are elected, I suspect they will not want their terms cut short.
Elections have consequences. This is so even if the Democrats would prefer they didn’t and even though they seem to spend most of their time trying to overturn the will of the people.
Judge Barrett is imminently qualified to be a Supreme Court Justice. There is truly no question on that. A review of her opinions and judgements while serving on the 7th Circuit Court of Appeals reveals that she is actually quite mainstream while proving to be a deep and thorough researcher and thinker and a clear and thorough writer. She is not the crazy person out to single handedly return us to the Dark Ages that the Democrats would have us believe she is.
The Democrats want to attach Judge Barrett’s personal conservative views with which they disagree to how she would rule as a judge. As I noted above, I don’t think anyone can begin to guess how a judge would rule. Both originalist/textualist and more liberal justices with other judicial philosophies often come to the same conclusion in a case. But the Democrats seem to be interviewing for an activist, not a justice.
Unlike the Democrats, I don’t really care about Judge Barrett’s personal life. What little I know of it I respect; I also suspect that while she and I would have some things in common there are also many things about which we would disagree. But she is not nominated to be my friend just as she is not nominated to be a policy advocate.
Judge Amy Coney Barrett is nominated to be a Justice. While I fully anticipate that she will reach some conclusions and write
some opinions with which I disagree, I also expect that her legal reasoning
behind her judgments will be impeccable.
And it is just that which we all should ask for and expect from a justice.
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