For Better or Worse

I – like a lot of my fellow Democrats – have been squirming about the unfair and untimely confirmation of a new Supreme Court Justice just before the election, after the Senate refused to even hold a hearing on Judge Merrick Garland’s nomination just a few years back because it occurred in the SAME YEAR as a presidential election. Earlier this week, nearly 100 of her apparently loving and admiring faculty colleagues at Notre Dame begged her to defer confirmation until after the election, because proceeding would “further inflame our civic wounds, undermine confidence in the court, and deepen the divide among ordinary citizens.”

On her life record, Amy Coney Barrett appears to be more than just qualified to be a Justice of the Supreme Court, albeit one who does NOT believe in abortion, does not like Obamacare and who cannot bring herself to recuse herself in advance from a case that may quickly come before the Court about this election.

To be clear, I believe Roe v. Wade is settled law partly because the case is a clear precedent, but also because the American people have repeatedly made clear that they want it to stay that way. While she didn’t leave any dispositive hints, she did indicate that Roe is a very well-established precedent.

Similarly, I also believe Obamacare SHOULD be settled law because it is clearly the wish/will of a clear majority of Americans. Again, she didn’t leave any hints; she did make clear that she recognizes that the American people overwhelming want and need health care.

President-for-now Trump got a shot at one more Supreme Court seat when Justice Ginsburg untimely died. He clearly wants to kill Roe v Wade and Obamacare. Therefore, he presumptively found a candidate who would do his bidding. Despite that, Barrett categorically denied ever discussing any of that with anyone in the White House.

And the Republican Senate – by one vote — appears to agree with the nomination.

So, despite the warnings of her colleagues, it is likely that we will shortly have a new Justice Barrett.

I listened to the first day of her hearings and came away heartened, I think.

Barrett properly refused to answer specific questions. But, in her precise lawyerly way IN MY OPINION Barrett left me with the feeling that she would –if seated on the Court—DO MANY OF THE RIGHT THINGS.

That surprised me because she is caught between the pincers of two diametrically opposed points of view AND she repeatedly said she agreed with Justice Ginsburg not to give any indication of what she might do IF seated on the Court.

That said, her oblique statements about precedents reassured me that she takes seriously the existing policies of Congress on both women’s rights and health and would be highly unlikely to have the Court go contrary to those policies. Her view on the role of the law in the judicial process appears to be consistent that Congress sets the policies and the Court deals with the law. That’s an interesting theory, not always practiced.

And, on recusal, if a case came before the Court involving the election, she was very clear that she would give serious consideration to recusal AFTER conferring with her colleagues on the bench. That is the right way to do it and suggests to me that, again, she might do the right thing.

She would like to share Chief Justice Roberts’ veneration of the standing of THE COURT in the American system. Thus, she should weigh carefully the views of her Notre Dame colleagues to avoid at all costs politicizing the Court in any way and diminishing its standing.  

That is a tough thing for an ambitious person to do, but she could earn an even more interesting place in history and remain a highly interesting candidate (and young enough) for the next Republican president to place on the high court. Democrats might even be inclined to agree.

I am offering up my neck for you to criticize me, IF I prove to be wrong!

And, if I am right? That’s what you’re entitled to expect from me!

So, we wait and see…