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|14 Oct 2020 18:24 #11472|
Gerardo E. Martínez-Solanas
Appellate Court Judge Barrett was born in New Orleans, and at 48 she'll be the youngest judge in the Supreme Court if approved by the Senate. Her father Mike was an attorney and her mother was a stay-at-home mom. Barrett attended St. Mary's Dominican High School for girls, then graduated with honors from Rhodes College, a Presbyterian-affiliated school in Tennessee, followed by graduation, summa cum laude, from Notre Dame Law School.
The Conenator" by fellow law clerks, a play on her maiden name and reputation "for destroying flimsy legal arguments," the Chicago Tribune reported. During the following years, she briefly practiced law and then taught for 15 years at Notre Dame Law School in South Bend, Ind.
Barrett has been a federal judge for three years and she has written about 100 opinions and "several telling dissents", the Associated Press noted of her judicial record. She was confirmed at the Appeals Court by a 55-43 vote, with three Democrats voting in favor of confirmation, and two more abstaining to vote, in spite of Democratic Senators attacks accusing Barrett as a socially conservative mirror image of Scalia, famous for his conservative approach to constitutional interpretation and passionate dissents from the high court's abortion and gay-rights rulings. However, she describes herself as an "originalist" or "textualist." It's a philosophy that looks strictly at the text of the Constitution or statute and tries to apply original intention from the framers.
As an Apeals Court nominee, she was also attacked by Democratic Sen. Dianne Feinstein of California, in particular on account of her faith: "The dogma lives loudly within you, and that's of concern," Feinstein told the nominee.
Barrett responded, "If you're asking whether I take my Catholic faith seriously, I do; though I would stress that my personal church affiliation or my religious belief would not bear on the discharge of my duties as a judge."
Republicans charged then that Feinstein's question betrayed an anti-Catholic bias, and Barrett was confirmed by a majority vote to the Appeals Court. As a Catholic, she is seen by some Senators as a supporter of the pro-life movement, eliciting opposition in block from the majority of Democratic Senators in these hearings for the Supreme Court.
"I don't think the core case, Roe's core holding that women have a right to an abortion, I don't think that would change," Barrett said in a discussion at Jacksonville University. "But I think the question of whether people can get very late-term abortions, and how many restrictions can be put on clinics, I think that will change." In fact, the most important argument, as well as the one least persuasive to most "progressives", is that all liberals should decry Roe vs. Wade. Yet even progressives who fail to see the right to life as a social-justice issue should prioritize democracy over judicial fiat. Everyone knows that the “penumbras” of Roe vs. Wade are based on judicial figments of the imagination rather than constitutional fact. Even Ruth Bader Ginsburg acknowledged that Roe went too far.
Similarly, the future of some controversial provisions of the Obamacare law could be at stake with Barrett's nomination. The court is scheduled to hear a third challenge to the law the week after the election. Twice before the court has upheld much of the law, but that could change now, with a possible Barrett vote pivotal.
Indeed, she criticized Chief Justice John Roberts' reasoning in upholding the penalty included in the Affordable Care Act (a.k.a. Obamacare), charged to people who elected not to subscribe to Obamacare plans.
"Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute," Barrett wrote in 2017. "He construed the penalty imposed on those without health insurance as a tax, which permitted him to sustain the statute as a valid exercise of the taxing power; had he treated the payment as the statute did — as a penalty — he would have had to invalidate the statute as lying beyond Congress's commerce power."
Nevertheless, Barrett has no apparent agenda to overturn the Affordable Care Act (ACA), as most Democratic Senators are trying to make it look like in these hearings. As others have pointed out, this assertion relies on a handful of sentences in a 10,000-word article in which Barrett discusses whether the concept of “judicial restraint” can be applied to the Roberts Court. Barrett has never ruled on the ACA, Medicaid, or Medicare; nor has she expressed any clear public opinions on this topic.
In addition, Barrett has written dismissively about the doctrine of respecting the Supreme Court's precedents, known as stare decisis:
"I tend to agree with those who say that a justice's duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it," she wrote in a 2013 law review article.
Therefore, she is giving greater authority to statutory law, as is the letter of the Constitution, over the practice of respecting precedents, known as consuetudinary [or customary] law.
On the other hand, and from the camp of her own opponents, there are also positive liberal reasons to support her nomination. Most important, all evidence points to Barrett being a strong advocate for disability rights. Laura Wolk, the first blind woman to clerk at the Supreme Court, describes how Professor Barrett responded to her raising accessibility issues at Notre Dame: “Laura, this is not your problem anymore. It’s mine.” We all should laud any nominee who has demonstrated a keen awareness that the onus for making environments accessible shouldn’t fall on disabled people.
As the mother of a child with Down Syndrome, she has ruled in favor of cases around disability rights, including a 2018 case in which she restored Social Security benefits to a woman who had been unfairly denied them by an administrative-law judge. Likewise, Barrett has proven herself willing to rule in favor of plaintiffs claiming race and sex-based discrimination. In 2018, she ruled in favor of a butcher claiming sexual and racial harassment by male colleagues. That same year, she ruled in favor of a woman seeking back pay from Costco after she took unpaid leave in the face of sexual harassment from a male customer.
And there are many other cases adding points in favor of her approval. Barrett’s exceptional qualifications should be enough to persuade any liberal –even those calling themselves "progressive"– to enthusiastically approve her nomination.
Let's hope that political interests do not prevail over merits.