Amy Coney Barrett will not be like Ruth Bader Ginsburg

The nomination of a new US Supreme Court justice and what is really at stake.

By JOEL H. GOLOVENSKY, JPOST   

JUDGE AMY Coney Barrett speaks at her Senate confirmation hearing to the Supreme Court, on Capitol Hill in Washington, on Wednesday.

(photo credit: ANDREW CABALLERO-REYNOLDS/REUTERS)

Everything happening in the US, not to mention in Washington, DC, is deeply enmeshed in the presidential election less than three weeks away. This has been an election fought for almost four years, since a huge segment of the country was dismayed (even outraged) by the results of the 2016 election.

If any event is calculated to arouse controversy, emotion and even hostility, it is the last-minute nomination by President Donald Trump of a Supreme Court justice to take the position formerly occupied by Justice Ruth Bader Ginsburg, a distinguished and long-serving justice, a social icon for the equality of women, and for many, a cultural folk hero.

Ginsburg was controversial throughout much of her career largely because of her achievements, but also because of her outspokenness. Before the last presidential election, she attacked Trump as a “faker… who really has an ego… [who has] no consistency,” and who should reveal his tax records. These remarks, made in various media interviews, were inappropriate (and I believe unprecedented) for a sitting Supreme Court justice, and were quickly recanted.

While Ginsburg had reportedly hoped to resign after 2016 so that Hillary Clinton could appoint her successor, with the election of Trump she seemed determined to hold on to her position until he passed from office. But, unfortunately, she was the one to pass on first. She passed away less than a month ago, reportedly expressing her explicit wish that no replacement be nominated before the presidential election.

And for similar, if inverse reasons, Trump is determined to appoint her successor, and as soon as Justice Ginsburg had finished lying in state, he nominated Amy Coney Barrett to the vacant position.

Last week, the US was focused on dramatic hearings before the Senate Judiciary Committee to consider her nomination. Part of the drama is the timing, for it is possible that Trump will lose the election and that the Senate will also pass to Democrat control. Thus the rush to nominate and the rush to vote before November 3. Two of the Republican Senators who are to vote on the committee and then in the Senate have been sick with the coronavirus, which they contracted at the very public ceremony announcing Barrett’s nomination. But a big part of the drama is the nominee.

Three years ago, Amy Coney Barrett was nominated to serve on the Seventh Circuit Court, and she was approved for that position by the same Senate Judiciary Committee by a strict party line vote. Last time the senior Democrat on the Committee, Sen. Dianne Feinstein, after discussing the judge’s Catholic upbringing and associations, infamously commented, “The dogma lives loudly within you.”

MANY CATHOLICS and many others were offended. In point of fact, Judge Barrett has expressed herself in articles and in her associations as a very loyal, traditional Catholic who believes in the traditional family where there is a father and mother and where the father is considered the head of the family. Before becoming a judge, she had expressed the view that sacred life is formed at conception, that there should be an abortion of abortion, and she had joined an ad calling Roe v. Wade – the 1973 Supreme Court decision that held state laws generally prohibiting abortion to be unconstitutional – an “abortion.”

In truth, however, Judge Amy Coney Barrett is far less likely than her predecessor, Justice Ginsburg, to allow her personal views to affect her judicial decisions. She is a strong adherent to the judicial philosophy most famously and effectively promulgated and applied by the late Justice Antonin Scalia for whom she clerked, to whom she attributes the greatest influence on her judicial philosophy, and whom she considers her mentor.

And this is the source of the real concern for all thinking Democrats and believers in judicial activism.

In a research paper written by Roie Kaduri for the Institute for Zionist Strategies and published this week, the limited role assigned to judges by Justice Scalia in a true democracy is set out and explained in detail. Judges, according to Scalia, must discipline themselves to exercise a modest role – not that of philosopher king. Their role is to implement the plain and simple meaning of laws passed by the legislature and not to decide, in practice, what those laws should better have done or done better.

The IZS research paper contrasts Justice Scalia’s approach with that of Prof. Aharon Barak, who inspired the judicial and constitutional revolution in Israel which has deformed the judicial process and made our courts, in the eyes of many, by far the most activist and intrusive courts in the free world.

Judge Amy Barrett is a disciple of Justice Scalia, not of Prof Barak. She will thus be a “conservative” judge who will cement the conservative majority on the Supreme Court for many years. She is 48 years old, and the other two Trump appointments are 53 and 55. She is 12 years younger than the youngest liberal judge and 34 years younger than the oldest.

Beneath all the fireworks and voiced concern against last-minute appointments and of fear for the fate of the Affordable Care Act, the Obama healthcare law, this is the real gravamen of the vigorous and even militant opposition.

These hearings may be what we need to forget about our own government mess and the coronavirus, at least for a few hours.

The writer is a member of the US Supreme Court Bar and practices law in Israel and the US.