by Noah Feldman
Like many other liberals, I’m devastated by Justice Ruth Bader Ginsburg’s death, which opened the way for President Donald Trump to nominate a third Supreme Court justice in his first term. And I’m revolted by the hypocrisy of Senate Majority Leader Mitch McConnell’s willingness to confirm Trump’s nominee after refusing to even allow a vote on Judge Merrick Garland.
Yet these political judgments need to be distinguished from a separate question: what to think about Judge Amy Coney Barrett, whom Trump has told associates he plans to nominate. And here I want to be extremely clear. Regardless of what you or I may think of the circumstances of this nomination, Barrett is highly qualified to serve on the Supreme Court.
I disagree with much of her judicial philosophy and expect to disagree with many, maybe even most of her future votes and opinions. Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer who will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed. Those are the basic criteria for being a good justice. Barrett meets and exceeds them.
I got to know Barrett more than 20 years ago when we clerked at the Supreme Court during the 1998-99 term. Of the thirty-some clerks that year, all of whom had graduated at the top of their law school classes and done prestigious appellate clerkships before coming to work at the court, Barrett stood out. Measured subjectively and unscientifically by pure legal acumen, she was one of the two strongest lawyers. The other was Jenny Martinez, now dean of the Stanford Law School.
When assigned to work on an extremely complex, difficult case, especially one involving a hard-to-comprehend statutory scheme, I would first go to Barrett to explain it to me. Then I would go to Martinez to tell me what I should think about it.
Barrett, a textualist who was working for a textualist, Justice Antonin Scalia, had the ability to bring logic and order to disorder and complexity. You can’t be a good textualist without that, since textualism insists that the law can be understood without reference to legislative history or the aims and context of the statute.
Martinez had the special skill of connecting the tangle of complex strands to a sensible statutory purpose. She clerked for Justice Stephen Breyer, who also believes in pragmatically engaging the question of what a statute is actually trying to do in order to interpret it.
In a world where merit counts, Barrett and Martinez would both be recognized as worthy of serving on the Supreme Court. If a Democratic president with the support of a Democratic Senate asked me to recommend a current law professor for the bench, Martinez would be on my short list.
But a Republican is president, and the Senate is Republican. Elections have consequences, and so do justices’ decisions about when or whether to retire. Trump is almost certainly going to get his pick confirmed.
Given that reality, it is better for the republic to have a principled, brilliant lawyer on the bench than a weaker candidate. That’s Barrett.
To add to her merits, Barrett is a sincere, lovely person. I never heard her utter a word that wasn’t thoughtful and kind — including in the heat of real disagreement about important subjects. She will be an ideal colleague. I don’t really believe in “judicial temperament,” because some of the greatest justices were irascible, difficult and mercurial. But if you do believe in an ideal judicial temperament of calm and decorum, rest assured that Barrett has it.
Way to much politics, will the lady rule intent of the Constitution and preservation of the Republic.
We know she is qualified. We know she does not decide ideologically but by the Constitution. That is all that matters. Democrats have shown us all how little they regard the Constitution and the rule of law, so it is imperative to the very survival of this country that we take every opportunity to strengthen the nation against the evil forces determined to destroy it.
Turns out the justice she is replacing was a poor justice. Ginsberg was not the legal giant the media would like us to think.
Dems haven’t committed to fighting or rolling over.
But their useful idiots in the public square have been given marching orders to emphasize two things:
1. The “people” must decide (which happens on November 3rd.)
2. The confirmation must not take place until AFTER January 20th.
(No good reason for that given. Must be so Appellate Courts make all the close decisions instead of SCOTUS.)
It will be done before Election Day.
@Nan G:
Once again, the left will show Americans how morally bankrupt they really are. They will attack ABC for her Catholic faith, as Dianne Feinstein did, as if there were some religious litmus test that the Constitution allows to be applied.
Be it Robert Bork, Clarence Thomas, Neill Gorsuch or Brett Kavanaugh, the left will attack, attack, attack. It’s what they do. And Amy Coney Barrett will receive no less than all the despicable treatment the Democrats know quite well how to dish out.
@retire05:
The Canonization of Saint Ruth Bader Ginsburg
Meanwhile, the media legacy of justice Ginsberg does not seem to include some very horrific views….
RBG now sips on thin gruel of rat with Stalin, Hilter, Pol Pott, Mao, and Castro at the dinner table in the inner most circle of Hades. She is no hero.
@July 4th American: Well, I’m certainly sick of hearing about her wonderfulness.
@Deplorable Me:
Yeah same. When the left wing media goes overboard to elevate her to sainthood, a reasonable person has to question the motive. Perhaps they do so the indemnity her from criticism. There are many former Justices and one or two present who have distinguished themselves as members of the Supreme Court more that rhb.
@July 4th American:
Jonathan Turley writes of RBG:
“Justice Ruth Bader Ginsburg was religious. She said, “I am a judge, born, raised, and proud of being a Jew. The demand for justice, for peace, and for enlightenment runs through the entirety of Jewish history and Jewish tradition.” She is the only justice to have a mezuzah affixed to her office door, and reportedly had the Jewish injunction “tzedek tirdof, or “justice shall you pursue,” woven into one of her jabots, or collars, worn on her Supreme Court robes. She studied and attended conferences on Jewish religious law. She insisted traditional certificates reading “the year of our Lord” be changed as unacceptable for Jewish lawyers. She was right, but her references to faith did not make her a religious zealot.”
So Justice Ginsburg had the “dogma clearly living within” her, when it came to the Little Sisters of the Poor, she offered them no such allowance writing the dissention to the Little Sisters of the Poor and Paul Home vs Pennsylvania:
“Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.”
RGB was not the first woman to sit on the USSC, Sandra Day O’Conner was. Before her, no female has sat on the USSC. If anyone shattered the glass ceiling, it was Sandra Day O’Conner. Yet, she was not lionized as has been RBG. The reason being that RBG was a lock solid vote for any absurd rule the left supported.
Did anyone question if RBG could eliminate her Jewish faith from her position on the USSC? It is clear she used it as a standard while she sat on the highest bench in the land.
Amy Coney Barrett will be vilified, ridiculed and insulted beyond all norms by the left even though she meets the feminist standards of being able to “have it all.” It’s what the left does. The videos of the disgrace that was the Clarence Thomas hearing on still on YouTube. Clarence Thomas was not ridiculed over his faith, or even his judicial standards. He was ridiculed because Joe Biden and Teddy Kennedy held resentment against a black man who had the audacity to marry a white woman. End of story.
The left knows that ABC will not be malleable like Roberts. Nor will she, unlike RBG, create law instead of ruling on the Constitutionality of the law.
@retire05:
And, this pick is critical in the sense that a second Trump term will likely produce at least one and maybe three more justices. breyer is 82 and will likely retire before the conclusion of the second term. Both Thomas and Alito could retires as well with Thomas older than Alito.
Replacing breyer replaces a liberal judge and Thomas and Alito would remain conservative. So , the court could become 6 1/2 or 7-2 depending on which way Roberts goes.
This is a big deal because it is becoming increasingly apparent that the ideology of the democrats is hard left and that is not nor is it likely to be the American electorate. And, when democrats have failed at the ballot box, their fall back was always the courts. Take away the courts(Federal judicial appointment by Trump , now 300 and a second term to go) and the democrats have nothing. They will not even be in the wilderness, IMHO they may become extinct.
@July 4th American:
True.
RBG supported affirmative action which is simply discrimination based on skin tone instead of merit. A black/Hispanic student has a greater chance of getting into a tony university even if their GPA is considerably less than a white student. That’s discrimination based on skin tone.
RBG also supported using foreign law to base USSC decisions on. It was not important to her that we have our own Constitution, the longest surviving Constitution in the history of the world. She advised another nation (Egypt), struggling to write a constitution, to use South Afrika’s constitution, not ours.
Having followed her career as a Justice on the USSC, I found her diabolically left wing issuing her opinions on her progressive beliefs, not the U.S. Constitution. Such jurists should not be allowed on the greatest court in the world. It is an antithesis to our very system of juris prudence.
@retire05:
I truly wonder at what point did she for all intents and purpose, was she unable to discharge her duties as an associate justice. From the writings purportedly hers, how much of those were clerk and staffers doing the preponderance of the work?
Many on the left have complained she should have retired when obama was potus and had the senate or before the 2016 election
I doubt Ginsburg has been a Justice for some time. She’s just been holding the seat until another radical liberal could pick up the gauntlet.
@July 4th American:
I found it abominable that RBG was allowed to hear oral arguments from her hospital room. That certainly had to be a first. If she was unable to hear oral arguments from the bench, the case should have been held without her or delayed.
Much of what RBG wrote was with the assistance of others. Unlike Scalia who wrote his own material.
I believe Obama asked her to resign which, of course, she refused. And like Teddy Kennedy, who was clearly a man who should not be idolized, she has been lionized by the left as a true champion of freedom but, unfortunately, not the Constitution.
Where is @Greg when we need him?
No one else can explain how evil Trump is, and how evil Barrett is, and how evil everything is.
No one else can so thoroughly trash the United States.
@mathman:
He generally shows up around three or so. Being 8 time zones away has him late to the party and by himself when the party is over.
Given the depth of irrefutable information put out in the last 3-4 days, it would seem his salad speak without any facts has run its course.
And his candidate at this point has basically thrown in the towel. I suggested the other day he reach out to the suicide hotline in advance of the Supreme Court nomination, the upcoming election and successful re election of President Trump.
Amy Coney Barrett’s past affiliation with People of Praise as a handmaiden is interesting. Even after a thorough scrubbing of their current web page and the deletion of past references to Ms. Barrett from the archives, there are still statements that I would expect might raise a few eyebrows on the right:
That sounds a bit like Christian socialism.
@Greg:
It does not go without notice that you are absent from any discussion about the conspiracy to prevent candidate Trump from becoming elected and subsequent efforts to cripple his presidency. obama and biden are guilty of treason and deserve life in prison.
As far as the Supreme Court nominee, the republicans have the votes. It is kore than likely she will become an associate justice before the end of October.
@July 4th American: That’s because people like Greg think it is perfectly OK for the federal government, the IC, FBI, IRS, DOJ and White House to conspire to destroy the candidacy of an opposition candidate and, failing that, destroy a duly elected President… as long as Democrats are pulling the strings.