In support of the confirmation of Justice Amy Coney Barrett


Photo credit CNN

Amy Coney Barrett at hr confirmation on Oct. 26, 2020.

On Oct. 26, 2020, despite protests, hit pieces, and vocal objections by senators, Amy Coney Barrett became Justice Amy Coney Barrett after being nominated, confirmed, and sworn into her new role on the Supreme Court. Her nomination and confirmation received much criticism, particularly from opinion articles which decried the actions of the Republican Party as hypocritical. Fearmongering politicians even went so far as to suggest that packing the Supreme Court of the United States was the only reasonable response to the legitimate confirmation of a well-qualified appellate court judge. But contrary to this rhetoric, Amy Coney Barrett is in fact a qualified and unbiased justice whose confirmation was carried out in adherence to the Constitution.

Despite objections from many on the Left, Barrett was a qualified nominee whose originalist legal philosophy will lead her to make well-reasoned decisions on the Court. The objections about Barrett’s qualifications fall into two subcategories: her résumé and her religion. In regard to the former, many on the Left will point to her lack of experience as a judge prior to her nomination for the Supreme Court. Numerous senators, talk show hosts, and columnists remarked that she had just three years of experience on a court before her nomination, but those three years are three more than well-regarded Justice Elena Kagan had when President Obama nominated her for the Supreme Court. In fact, Barrett’s career path has many similarities to that of Justice Kagan: both spent time in an important role in the federal government immediately prior to their nomination (solicitor general for Kagan and appellate court judge for Barrett), both spent a large part of their legal careers in academia rather than as judges, and both clerked for a Supreme Court justice. Barrett clerked under Justice Antonin Scalia, a titan of originalist legal thinking, and someone who is often described as Barrett’s mentor. 

Originalism, as Justice Scalia practiced and Justice Barrett now practices, applies the law as the legislators, or voting populace, who voted on a given piece of legislation (or the Constitution) believed it would apply. [Author’s Note: Here is a conversation between Justice Stephen Breyer and Justice Scalia that does a far better job explaining both Scalia’s beliefs, his reasoning, and his disagreements with the liberal wing of the court.] This approach attempts to prevent justices from legislating their personal beliefs from the Court. For example, the Eighth Amendment to the US Constitution prohibits “cruel and unusual punishment,” and an originalist would look at that clause in historical context and say that it does not prohibit the death penalty. An originalist would come to this conclusion because when the Eighth Amendment was adopted in 1791, death was the penalty for all felonies, and therefore the people who adopted the amendment clearly did not consider it to be cruel and unusual. Other legal philosophies would read the Eighth Amendment, establish what they believed to be the morals outlined in the text, and then apply those morals with modern standards in a modern context. The problem is that applying those morals with modern standards is that a justice inevitably applies their own moral standards, but originalism prevents this. Barrett’s originalist philosophy is apparent in her own comments, such as when she says that despite the contrary teachings of her Catholic faith, she would be willing to enforce the death penalty. Her comments and philosophy, however, have done little to prevent questions about her faith.

Despite her avowed originalist philosophy, numerous senators and pundits questioned her involvement in both the Catholic Church and the People of Praise, a mostly Catholic religious group, during both her Supreme Court and appellate court confirmation processes. The People of Praise is a multidenominational Christian community that seeks to foster ties between members through prayer, community service, and other religious activities. Many major publications ran articles attacking gender roles within the community, even going so far as to compare it to the popular novel and TV show The Handmaid’s Tale. These comparisons are outrageous for a group that merely seeks to foster a community of Christians and provide younger members with advisors. The organization has no arranged marriage, no polygamy, no requirements in the area of child bearing, no oaths involved, and membership is entirely voluntary. Her membership in a group such as this does not reflect poorly on her ability to serve on the Court. On the contrary, I believe that the dedication and deep moral code that such a membership implies, combined with her staunch originalism, will make her an outstanding member of the Court. The time commitment and moral convictions required to be part of such a group demonstrate that Barrett follows through with what she professes. On the Court, this will result in her applying her legal philosophy consistently regardless of her personal moral opinions. 

Overall, the organization falls in line almost perfectly with the other aspect of Amy Coney Barrett’s faith: Catholicism itself. In 2017, during her Senate Judiciary Committee hearings for her appellate court nomination, Barrett’s Catholic beliefs came under attack from senator Dianne Feinstein (D-CA), who proclaimed to Barrett, “The dogma lives loudly within you, and that’s of concern.” 

This is in direct opposition to Article 6 of the Constitution, which states, “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Regardless of the Constitution and its prevention of religious tests, the opinions written by Amy Coney Barrett while serving on the Court of Appeals for the Seventh Circuit based on her originalist legal philosophy make clear that her religious beliefs are not a hindrance to her work as a judge or now as a justice.

The second category of criticism has more to do with the senators confirming Barrett than with Barrett herself. In 2016, following the death of Justice Antonin Scalia, President Obama nominated Merrick Garland to fill the vacancy on the high court. The Republican-controlled Senate led by majority leader Mitch McConnell blocked the nomination and held the Court vacancy open until the election of Donald Trump. Many Republican senators claimed that the American people should get to voice their opinion on the matter through the election. This line of reasoning, as it turned out, was mostly an attempt to shield vulnerable GOP senators in the upcoming election rather than a deep-seated conviction. The circumstances around Amy Coney Barrett’s confirmation were very similar to that of the nomination of Merrick Garland, namely the death of a justice in an election year. This time, however, there was one notable difference: unlike in 2016, the Senate and the presidency were controlled by the same party. 

While the Republicans’ hypocrisy in their the talk of “letting the American people decide in the upcoming election” from Republican senators in 2016 was evidently only an attempt to rally voters and avoid controversy, the Republicans blocking the confirmation was nevertheless a legal and valid execution of their constitutional duty to give consent, or in this case to refuse to give consent, to the nominations of the president. President Obama could have withdrawn the nomination and attempted to nominate another person to fill the vacancy, one more in line with the beliefs of the Senate majority, but he did not. Consequently, the elected representatives of the people — the Senate — continued to block a nominee that did not fit with the principles upon which they were elected.

Similarly, when President Trump nominated a justice in 2020, as was his constitutional duty, the Senate, also executing its constitutional duty, chose to confirm Amy Coney Barrett. The Senate acted in much the same way as it did in 2016 by simply executing their constitutional duty in accordance with the platform and values upon which they were elected.  The Senate majority acted consistently with their duties and powers in both instances, and therefore any accusations of hypocrisy must lie on the words of the GOP rather than their actions. Although those words in 2016 were only politically motivated, that does not mean that the actions of the GOP were unjustified.  

In the end, it boils down to what President Obama said when rejecting the Republicans’ protest of the passage of the Affordable Care Act: “Elections have consequences, and at the end of the day, I won.” Except in this case, the Democrats lost control of both the Senate and the presidency. In both cases, the two sitting presidents and the Senate all exercised their constitutional authority–they merely had differing outcomes. Should Democrats take control of the Senate in addition to the presidency, they too should execute their constitutional duties in accordance with the platform upon which the people elected them. As it stands, however, the actions of Republican senators in both 2016 and 2020 fall perfectly in line with their responsibilities as members of the world’s greatest deliberative body.

Amy Coney Barrett’s confirmation to the Supreme Court is a victory for both the nation and our system of governance. A well-qualified justice who seeks not to impose her moral beliefs upon the nation and encroach on the legislative branch’s authority has been confirmed to the high court. This confirmation will strengthen our Constitution, reinforce the  separation of powers, and ensure that important issues will be decided by elections and debate, not the Supreme Court imposing its moral will on the citizens of the United States. This confirmation is a victory for our system of government and for our freedoms.

Junior Andrew Thompson is a leader of the Young Conservatives club.