Published October 13, 2020
If recent history is any indicator, one can no longer be sure what to anticipate in a Senate Judiciary Committee hearing for a Supreme Court nominee. Admittedly, as a vocal fan of Judge Amy Coney Barrett, I feared the worst on the opening day of the confirmation hearings.
And yet, ironically, we heard far more about the possibility of Americans losing their health care insurance under a Justice Barrett than about Barrett’s qualifications to sit on the Supreme Court. Ironic because many constitutional law experts in recent weeks — right, left and center — have said that the high court case challenging the Affordable Care Act this term has little chance of success, with or without a Justice Barrett. (And as the years pass, reliance interests — the legal interests that institutions and individuals have in the Court maintaining stability in its decision-making — on the ACA will grow as institutions and individuals structure their affairs on its existence, a concern that would undoubtedly shape Barrett’s view of a future challenge as well.)
Given the strength of Judge Barrett’s record, perhaps playing to the fears of the American public — who aren’t likely to be reading commentaries on the upcoming Supreme Court term but are voting soon — was the Democrats’ only play.
Well, almost the only play. Of course, we have also heard plenty from Democrats in recent weeks about how there ought not be a confirmation hearing this close to Election Day because the GOP-controlled Senate denied Judge Merrick Garland one in the 2016 election year.
The truth is that Democrats would have this seat now if Justice Ruth Bader Ginsburg had retired before President Barack Obama’s final year in office. That she chose not to is not the GOP’s fault, it’s not Judge Garland’s, and it sure isn’t Judge Barrett’s.
One cannot help but conclude by the actions on the part of the Democrats on Monday that the case against confirming Judge Barrett is a very poor one, indeed. Let’s face it: Her qualifications are impeccable, her originalist philosophy now quite mainstream, and her dispassionate and self-possessed temperament the very best one could hope for in a judge. And she will bring real diversity to the Court, too. Not only would she be the only justice who hails from outside the Eastern Seaboard and Ivy League schools, but the fact that she is the mother of seven children may well give rise to a way of approaching the law that is both consistent with that of her mentor, Justice Antonin Scalia, and unusually sensitive to the perspective of the litigants.
She said a bit about this perspective in her opening statement: “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 law?”
Barrett does not wield a cold judicial philosophy that seeks only to determine the original public meaning of the law. Rather, she recognizes the impact the law has upon ordinary people, while also possessing the humility to see that which the great judges of our constitutional tradition have always seen: In our republic, it’s not the Court’s role to, in Barrett’s words Monday, “solve every problem or right every wrong.”
That task is properly one undertaken by political (and non-governmental) bodies who are closest to and ought to be the most responsive to the needs of the people, diverse as they are. Yet this task in recent decades has been all too readily relinquished to a high court far too eager to enter into the most contentious political questions of the day, with little warrant from constitutional text or tradition. It may well take a seasoned mother to teach the nation once more that it is possible for one to enforce the rule of law while simultaneously lamenting the result.