Why the Senate Should Confirm Amy Barrett

The arguments against her don't hold up

|The Volokh Conspiracy |

At First Things, I have an essay on the Barrett confirmation, arguing that Senate should vote to confirm. The objections to her appointment, including objections to her religious commitments and the effect they may have on her jurisprudence, don't hold up. Here's an excerpt:

Another objection is that Judge Barrett will be an activist. Here the argument seems to be that, as a faithful Catholic and member of an ecumenical charismatic group, she will inevitably decide cases on the basis of her religious convictions rather than the law—"the dogma lives loudly within you" and so on. But no evidence of this sort of thing exists in her record as an appeals judge, though that record is, admittedly, brief. In her one essay that raises the subject, Judge Barrett suggests that in cases of conflict she would recuse herself rather than impose her Catholic convictions in place of the law, a position that arguably should concern Catholics more than non-Catholics. And, as my colleague Marc DeGirolami has explained, her writings about stare decisis—the idea that judges should stick to decided cases and not overrule them, even if judges think those cases are wrong—are well within the American legal tradition.

Moreover, as Judge Barrett pointed out in a speech at Hillsdale College last year, keeping one's ideology out of judging is not a problem limited to Catholics, or believers generally. When "you think about the debate about whether someone's religion has any bearing on their fitness for office," she told the students, "it seems to me that the premise of the question is that people of faith would have a uniquely difficult time separating out their moral commitments from their obligation to apply the law." But that isn't true. "People who have no faith, people who are not religious" also "have deeply held moral convictions," she said. "And it's just as important for those people to be sure . . . to set aside . . . personal moral convictions . . . and follow the law."

The extent to which judges can and should keep personal moral convictions out of the law is of course a matter of debate. Some constitutional doctrines invite judges to import their convictions into the law, or at least make it difficult for judges to avoid doing so. One example is the "compelling interest test" in free-exercise law, which asks judges to evaluate whether the state has a compelling interest that justifies a burden on religious freedom. But there is no reason to think Judge Barrett would have a harder time setting aside her personal convictions than a secular justice would have setting aside his or hers. Besides, progressives have been arguing for decades that the bench should reflect diverse life experiences, which help judges apply the law in empathetic ways. It's a little late in the day to argue such a thing is unthinkable.

Interested readers can find the whole essay here.

Advertisement

NEXT: No Sealing / Pseudonymity in #TheyLied Libel Lawsuit

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. I get needing to produce but you do understand she was confirmed the second her name was announced, right?

    1. Actually, even before that.

      1. Like about 3 years ago, following the last failed show trial. What did people honestly (cough) believe would have changed since then that suddenly would disqualify her?

      2. Which is why she was nominated. No President wants to nominate a loser.

  2. Choose reason. Every time.

    Choose reason. Especially over sacred ignorance, dogmatic intolerance, and stale thinking.

    Choose reason. Most especially if you are older than 12 or so. By then, childhood indoctrination fades as an excuse for backwardness, gullibility, bigotry, and ignorance. By adulthood — including ostensible adulthood — it is no excuse, not even in the most can’t-keep-up backwaters that still afflict America.

    Choose reason. And education, tolerance, science, modernity, freedom, and progress. Avoid superstition, bigotry, ignorance, authoritarianism, dogma, insularity, and pining for good old days that never existed — not 50 years ago, not 2,000 years ago.

    Choose reason. Every time. Be an adult.

    Or, at least, please try.

    Thank you.

    1. And Arty makes the case for voting for Trump over Biden.

      1. Not a fan of reason?

        You must dislike the most recent 50 to 75 years of American progress and detest modern America.

        Being that disaffected sounds like a sad way to live.

        Me? I have a three-year-old Mad Elf chilling for Election Day, and have selected a Samuel Adams Triple Bock from 1995 for Inauguration Day. That Triple is a bit iffy despite sound storage — could be magnificent, could be vinegar or worse — so I’m open to suggestions on a backup bottle for the inauguration.

        1. Wow, you drink crap and are proud of it. Your orientation in drink matches your poor opinions about life matters.

          1. What is your objection to Mad Elf? The style? The execution?

            Why would you describe Triple Bock as “crap?” I had two cases of Triple Bock — received one as a gift from the brewer, but only after I had purchased another case, which was pricey for the time — and it was bad at inception but improved greatly after about six or seven years. I haven’t had one in a few years — only about eight or nine remaining — but the prospect of trying it in January to commemorate the inauguration is enjoyable.

            Or is this just the ignorant, scattershot ranting of a downscale right-winger who recognizes America is about to impose a stout reckoning on clingers?

            1. Crap is crap. You can go drink beer with BK.
              You might at least drink Brother Thelonius.

              1. Who, or what, is BK?

                Brother Thelonious is a fine product. Availability has been sketchy lately, though.

                Have you ever tried Mad Elf or Triple Bock, you bigoted, half-educated rube?

        2. You wouldn’t recognize reason if it bit you in the ass.

    2. You are the poorest example of reason, tolerance, and lack of dogma on this entire site.

      FEED COMMENTERS, STARVE TROLLS [like Costco here]

      1. I see you like your right-wing polemics uninterrupted by differing points.

        Ask the proprietor to censor the liberal-libertarian content or ban the non-clinger commenter. He has done it before.

    3. We do choose reason. That’s why we consistently reject your bigotry, intolerance and dogmatic authoritarianism, RAK.

      1. I am content to observe who the American people reject in November. Looking forward to that verdict, Rossami?

        1. You love the idea of being part of a victorious mob stomping over the opposition (or is it forcing things down their throat?)

          So – you’re basically a Brownshirt or Red Guard.

          1. I like winning the culture war consequent to

            (1) democracy,

            (2) having better ideas,

            (3) the ascendance of modern, successful, educated communities and emptying of ugly, can’t-keep-up backwaters, and

            (4) preferring reason, science, tolerance, education, and modernity to backwardness, bigotry, superstition, and ignorance.

    4. Someone serious might know that “reason” depends entirely on ones priors and worldview, and that your interpretation of every one of the insults or praises in your list is variable the same way, not Some Golden Standard You Can Prove The MEAN OTHER BADDIE is violating.

      But you’re not someone serious.

      (Next you’ll tell me people should have voted for Nixon in ’60 because JFK was Catholic, and thus a dogma-following authoritarian know-nothing.

      Oh But That Was Totally Different, Right?)

      1. People are entitled to believe as they wish.

        Competent adults, however, neither advance nor accept superstition-based arguments or positions in reasoned debate, especially with respect to public affairs.

      2. Someone serious might know that “reason” depends entirely on ones priors and worldview […]

        Indeed. Which is why Democrat senators tried to learn about ACB’s “priors and worldview”, topics which ACB very thoroughly deflected on.

        1. Just out of curiosity, how much of the hearings did you watch?Would you share examples of questions you thought whe should have answered, but didn’t?

          Thank you.

          1. How about “all of them”? The supposed “Ginsburg rule” is bullshit.

    5. I chose empiricism combined reason.

      Pure reason gave us Marxism, which has inflicted more misery in the aggregate on humanity than all other ideologies combined since the dawn of humanity.

      Reason combined with empricism gave us the capitalist system, which in the aggregate has produced more wealth and human comfort for humanity in the last 100 years than all other systems combined. And also spawned representative democracy and respect for human rights and liberty.

      But don’t worry, Trotsky’s Mexican villa is still available for rent.

      1. Where does religion fit in ‘reason combined with empiricism?’

        1. Marxism doesn’t fit. So you shouldn’t choose the party infested with superstitious Marxist rubes.

          1. The Republican Party must change or die.

            I vote “die.”

            A conservative party without the bigotry, superstition, and backwardness would be a welcome development.

            1. RALK @ 14:58:

              “A conservative party without the bigotry, superstition, and backwardness would be a welcome development.”

              As would the Democrat party (and RALK) who are not threatened by women. Bigotry is not a good look.

              1. That’s the Democratic Party, you half-educated clinger.

                1. RALK @ 4:09 pm – Thanks for the correction! Long day!

  3. I thought the best point in the essay (linked above) came at the end. We won’t have a firm fix on ACB’s judicial philosophy for a few years (3-5). Everything I heard and read about her in print leads me to believe she will be very circumscribed….not unlike CJ Roberts.

    1. Most thinking observers expect her to be a reliable hard-right vote. Many of her supporters based their enthusiasm on that expectation.

      She claims it would be impossible to predict her voting pattern.

      Evidence indicates she’s either daft or a liar.

      I don’t care which, so long as court enlargement relegates her to a long career of authoring bitter, strident, backward dissents complaining about ‘all of this damned progress.’

      1. When did you suffer your traumatic head injury, Rev?

        You’ve been a loud voice of irrational hatred here for years.

      2. “Evidence indicates she’s either daft or a liar.”

        Arthur hasn’t produced any evidence, but in his heart he knows it exists. In the Church of Exalted Reason, you have to have faith that the evidence supports your narrative.

        1. You figure it’s hard to predict a Justice Barrett’s trajectory on that court? You figure she is offering a reasoned, truthful opinion when she shrugs and says ‘who knows how I would rule as a justice?’

          Are you having a hard time predicting how the presidential election will be decided, too?

          1. The dogma lives loudly within you, Arthur.

          2. “Choose reason.”

            “I don’t need to provide evidence for my assertions!”

            1. Here is an example of evidence and reasoned analysis indicating that a Justice Barrett would be a predictable right-winger.

              There are plenty of others. This site does not permit multiple links, so far as I am aware.

              1. Nothing in there about her being daft or a liar, Arthur.

                1. She was daft or lying when she said it would be impossible to predict her ideological trajectory on the Supreme Court.

                  If you don’t even try to keep those gloves up, this isn’t going to be much of a contest.

                  1. “If you don’t even try to keep those gloves up, this isn’t going to be much of a contest.”

                    That’s certainly true. Your link doesn’t even purport to predict her ideological trajectory with any certainty, Arthur.

                    “we don’t really know how conservative Barrett would be if she’s confirmed.”…
                    “If she’s confirmed, it seems fairly safe to assume that she would continue that pattern — even if she’s occasionally willing to break from her fellow conservatives.”

                    Maybe fivethirtyeight is daft or lying too.

        2. If she votes on the SCOTUS anything like she votes as an appellate judge, then yeah, we can reliably predict that she’ll vote more conservative then Roberts in most cases.

          Pretending that her writings, activism, and admittedly short stint on a lower bench don’t inform on what she’s likely to do on the SCOTUS is idiotic, even if that’s what she tried to claim in front of the senate judiciary committee.

    2. That’s an argument against confirmation, not for it. Unknowns shouldn’t be confirmed to the SCOTUS.

      1. There are unknowns with every nominee. What is your point?

  4. This process is tainted in two ways: (a) it is untimely, in the midst of an election; (b) a significant number of Republican Senators made public announcements of their affirmative votes even before the nomination was made. The Judge’s willingness to participate in such an inopportune sham is disqualifying all by itself.

    1. Her enthusiasm seems destined to fade early next year.

    2. You just did an anti-Catholicism! Don’t you know this woman has children?

      In all seriousness, the fact that she was on Trump’s radar, and agreed to take his call, speaks ill of her character. The fact that she has refused to recuse from a challenge to the election results and is telegraphing that she will help Trump keep power is absolutely damning. Court-packing, jurisdiction-stripping, or whatever it takes to get these fedsoc ghouls out of power cannot come soon enough.

      1. It’s court enlargement, not court-packing.

        Coming soon to a nation near you.

        1. “It’s court enlargement, not court-packing.”

          Weird, it was court-packing until 2016.

          1. I guess that’s like how sexual preference was another word for sexual orientation until Mazie Hirono had the dictionary changed.

          2. Artie is language challenged.

        2. So if notional President Trump does it in 2021, you’ll be cool with “court enlargement”?

          Oh Wait No That’s Totally Different.

          1. I believe the Republicans should do as they wish while they have the political power.

            I also believe conservatives should be preparing for (a) the likely results of the next election and (b) the consequences of their recent conduct.

            Do your damnedest, clingers.

            Then, brace yourselves for the reckoning to be imposed by your betters.

            1. Re: RALK @ 12:47 Pm:

              “Do your damnedest, clingers.

              Then, brace yourselves for the reckoning to be imposed by your betters.”

              RALK, so much anger (and bigotry) on display from you on several of the ACB threads.

              It’s okay. I thought you were not part of the “foamy (as in rabid) left”. Don’t disappoint me.

      2. What sense does it make for her to recuse from an election case? A 4-4 tie in an election case where the recused justice has no obligation to recuse under any canon of ethics would do lasting harm to both faith in our electoral system and the judiciary.

        1. “no obligation to recuse under any canon of ethics”

          That’s because there is no canon of ethics binding on the Supreme Court. But if she does her duty and helps Trump with a judicial coup, there will certainly be a “cannon of ethics”, if you catch my drift.

          There already is next to no faith in the electoral system or the judiciary. Her voting to keep Trump in power would just complete America’s transition into a banana republic.

          1. Banana republic? Not nearly. The most the re-election of Trump would accomplish would be (a) a four-year delay in the routing of the Republican Party and (b) an intensification of that routing.

    3. That’s a crock and you know it.

    4. Phooey and or sour grapes. If there shoe were on the other foot, we’d see the mirror process. Power politics is like that.

      1. Ok fine. If this is a power politic move, which I agree it is, then lets stop pretending that it is wrong to vote against her because of her political ideology.

        1. Oh, I agree with you completely Molly. There are many reasons for voting that are legit. Only voting because of a bribe isn’t.

    5. (a) This seems like the best possible time to get Senators on file voting, so voters can take that into account in the upcoming election.

      (b) What difference does that make? If she’s qualified the fact that they pre-pledged is of no moment.

      “The Judge’s willingness to participate in such an inopportune sham is disqualifying all by itself.”

      This would disqualify every judge who didn’t reject the nomination, and if they did reject the nomination, they couldn’t be voted on. Your objection isn’t about qualifications. It’s that no one who the President nominates should be on the bench at all.

    6. it is untimely, in the midst of an election

      Which there is a long history of, making it not untimely in any way.

      a significant number of Republican Senators made public announcements of their affirmative votes even before the nomination was made

      And…? It’s not like she’s some new unknown quantity. She’s already been through the process once before.

      The Judge’s willingness to participate in such an inopportune sham is disqualifying all by itself.

      The stupidity of that comment doesn’t even merit a response.

  5. What we have learned about Barrett is that she absolutely will not criticize Trump, no matter what.

    Can he delay an election? Won’t say.

    Can he have his thugs intimidate voters? Won’t say.

    Should there be a peaceful transition if Trump loses? Won’t say.

    Is it acceptable to separate children from their parents to punish and deter illegal immigration? Won’t say.

    This is bullshit.

    The whole game needs to be changed. Judges should be asked, and expected to answer, these kinds of questions.

    1. You idiots crack me up. What has she said other than she is going to follow the constitution as written? Not as she wished it would be which was an RBG thing.

      Its pretty simple and the constitution is a simple document. Folks claim its complicated only when they attempt to subvert it.

      ACB believes SCOTUS doesn’t make laws and SCOTUS doesn’t make constitutional amendments.

      Sounds good.

      1. You’re really going to call someone else an idiot, while regurgitating mindless slogans like “follow the constitution as written” and “SCOTUS doesn’t make law”? Grow up.

        1. Is this satire? If it isn’t yea you are an idiot.

          So SCOTUS does make law and change the constitution?

          A literacy test is really needed to vote. It wasn’t such a bad idea after all.

          1. “So SCOTUS does make law and change the constitution?”

            Yes. The Supreme Court is a political institution that exerts political power. Always has been, always will be. If you honestly believe that they are just scholars dispassionately interpreting the text, then you are a . . . well, I don’t want to join you on the low road and call you an idiot, but you’re certainly a naif or a sucker.

            1. The point is that SCOTUS should not exert political power, since it is not a Court of political power. To the extent that’s the role it has inherited, one way to correct that would be to put justices on the bench who don’t view their role as politics or legislating. There isn’t a sitting Justice who would disagree with ACB’s statements re “SCOTUS doesn’t make laws.”

              1. The point is that SCOTUS should not exert political power […]

                No, it is not.

                Because regardless of “shoulds”, we have to deal with reality.

                And the reality is that if the senate were any good at confirming only justices that “apply the law” with no bias or motivation, we wouldn’t have so many justices that disagree with eachother.

                So even if you hold that it is possible for such a justice to exist, we have no reason to believe the senate is able/willing to restrict confirmations to such justices.

                So given that we can dismiss any given judge’s claim of merely seeking to “apply the law” (after all, they all claim that even as they write scathing dissents to each other’s opinions), it becomes entirely prudent to try and find out, were a given judge to act with bias, what that bias would be.

                Pretending that this time the senate is actually confirming an unbiased judge, as opposed to all those previous times they didn’t, and so you don’t need to know more about the moral and ethical thinking of a nominee, is something you should not do, as it is behaving in reality as if you were in a utopia.

                1. “And the reality is that if the senate were any good at confirming only justices that “apply the law” with no bias or motivation, we wouldn’t have so many justices that disagree with eachother.”

                  This would only be true if “apply the law” was some mechanical function that never resulted in disagreements. SCOTUS is a sieve for complicated cases; the uncomplicated cases don’t reach SCOTUS, they’re resolved at the lower levels (and never appealed). And SCOTUS tends to take the hard cases, since it has finite time.

                  But even so, it’s really not accurate to say there are “so many justices that disagree with eachother.” They agree with each other all the time. The most likely vote coalition on the Supreme Court is 9-0.

                  1. Two words: “Activist judges”.

              2. There isn’t a sitting Justice who would disagree with ACB’s statements re “SCOTUS doesn’t make laws.”

                I suppose that illustrates the distinction between stated preferences and revealed preferences. Or maybe that the justices feel the need to repeat trite claims about being non-political to promote public confidence. Because none of the justices have actually acted in a manner consistent with that statement when matters of political or ideological importance were on the line.

                To be clear, I have no problem with her saying it, the problem is with the previous commenter who acted like it meant something.

                1. “Because none of the justices have actually acted in a manner consistent with that statement when matters of political or ideological importance were on the line.”

                  They all do. Even Brennan. There has never been a judge who says “I think the law is X, but I’m going to go ahead and do not-X because of my policy preferences.”

                  In which decision do you contend a justice did not act “in a manner consistent with that statement when matters of political or ideological importance were on the line”?

                  1. A couple recent ones that come immediately to mind (for the conservatives) would be Janus and Hyatt. Cases where there was clear controlling authority which they decided to overturn because they did not fit their ideological preferences. Bush v. Gore is another obvious one. For the liberals, I suppose you could say Obergefell as well.

                    ” There has never been a judge who says “I think the law is X, but I’m going to go ahead and do not-X because of my policy preferences.””

                    I never said that they said it; I said that they did it.

                  2. In which decision do you contend a justice did not act “in a manner consistent with that statement when matters of political or ideological importance were on the line”?

                    I mean, Barrett wasn’t shy (before this week) with her criticism of Roberts “saving” the ACA.

    2. It’s worse…much worse. She and Kavanaugh are loyal to W Bush and in fact Kavanaugh is a justice because Bush called Collins and urged her to support him.

      1. Demonstrate this loyalty, please.

        (Also, how can you be “loyal” to someone who’s not in public life, as a Court justice?

        Do you have wiretaps of her or K asking Bush what to do on cases?

        Or is this just … assertion that they MUST BE. Because, like, reasons?

        What the FUCK is wrong with people?)

        1. Wow you are dumb!! The Bush family is like herpes!! There is another Bush lurking in Texas and Jeb’s entire presidential campaign was designed to undermine Rubio’s candidacy so George P Bush would be the highest profile Latino Republican. I guarantee when Trump loses in a landslide George P Bush will be seen as the savior of the Republican Party and you will start donating to him.

    3. bernard11, who said: “I cannot say one word on that subject that would not violate what I said had to be my rule about no hints, no forecasts, no previews.”

      It was The Notorious RBG. If that standard was good enough for her, then it is good enough for ACB.

      1. XY,

        I disagree with RBG, just as I do with Barrett. Further, look at these specific questions.

        Can Trump delay the election? That’s supposed to be debatable?

        Should there be a peaceful transition? What argument does she imagine might be might against that?

        Even if you agree that nominees should be extremely cautious on some questions, there has to be a limit.

        1. “Can Trump delay the election? That’s supposed to be debatable? ”
          My answer “no” but I am not on the stand.

          However, this year we have grossly distorted the election with votes coming in since September and with already many rejected mail-in ballots.
          It seems that restrict the time of voting back to 1 week would be entirely reasonable. But that is unacceptable to certain partisans.

          I am afraid that the election will be a very noisy measurement of the popular will with very large error bars that will tend to undermine the legitimacy of the process.

          1. I agree the election results will be noisy. Though it looks to me as if shortening the period would only make it worse. Fewer votes cast, less time to “cure” erroneous mail-in ballots, more risk of delays – intentional or not – by the USPS, etc.

            None of that has anything to do with Trump’s power to delay the election.

          2. It seems that restrict the time of voting back to 1 week would be entirely reasonable. But that is unacceptable to certain partisans.

            Also unacceptable to the constitution, which gives the power to run elections to the states.

        2. I think you’re right = there has to be a limit. But bad behavior kind of foreclosed that.

          For now, the line appears to be drawn at ‘super precedent’, which seems to be Marbury and Brown.

          1. What “bad behavior?”

            1. Senators acting asininely.

    4. They used to in the distant past, bernard. But no more. Everyone knows this is a slippery slope as a witness. It is only that Barrett was far more in control of her emotions than BK.

    5. Oh, so you think the Supreme Court’s job is to pontificate on partisan leading hypotheticals for your amusement?

      The Supreme Court’s job is not to decide if something is “acceptable” in some unspecified sense.

      It’s to decide if something is compatible with the Constitution and US law, no more, no less.

      (This includes the 9th and 10th amendments, of course, but that’s still the only and entire framework the Court is answerable to.)

      1. It’s to decide if something is compatible with the Constitution and US law, no more, no less.

        And you are claiming, seriously, that nominees haven’t already formed an opinion on some issues?

        Someone who has been a professor of Constitutional law, and an appeals court judge, has a completely open mind as to whether the President can delay the election?

        And why shouldn’t she discuss her views of the morality, as opposed to legality, of some policies? I mean, we hear all about the importance of faith, which presumably implies some moral standards, to her. No bar on that. But don’t ask about the implications of her faith for her views on morality. Oh no.

        1. If I recall correctly, she mentioned her faith, then she (and other Republicans) claimed it would be improper to ask her about it.

          Why did she mention it?

      2. Oh, so you think the Supreme Court’s job is to pontificate on partisan leading hypotheticals for your amusement?
        I think it’s the job of a Supreme Court nominee, having already been sufficiently credentialed, to reassure the Senate that they have good judgement and moral character.

        Refusing all questions that might actually do so should be grounds for voting to not confirm. That it isn’t is a failure of the senate.

        1. I think it’s the job of a Supreme Court nominee, having already been sufficiently credentialed, to reassure the Senate that they have good judgement and moral character.

          And you think that’s what the positing of politically-charged vague hypotheticals is about? Please tell me you’re not that stupid.

    6. Can Trump delay the election?

      That’s an interesting question. For a number of reasons, and a number of hypotheticals, and a number of technicalities.

      Technically, the election day is set by Federal law. But the Federal government doesn’t really control the elections, the states do. In addition, since the State law in several places allows for ballots received AFTER the election day to be counted, in many ways the states have already “delayed” the election. So there’s that. If you’re counting new Ballots that arrive on November 5th (Election day is November 3rd), has the election effectively been delayed? If you want to be REALLY picky about it, according to the National Law, it’s not clear that these ballots that arrive after November 3rd could be counted….

      But, what you’re really asking is, could Trump use emergency powers to delay the election? Answer: Probably not, but maybe.

      Technically, only Congress has the power to delay the election. But imagine the following situation. A terrorist attack hits New York City early on November 3rd, throwing people’s election plans into chaos. Congress can’t get into session fast enough to pass a law delaying the election in New York City. The President passes an executive order that delays the election in New York City for 10 days, due to the national security crisis. Would that be legal? Technically no. In practice, Congress would likely retroactively approve it, rather than have NYC’s elections be determined by the handful of absentee ballots received, and ignoring the entire in person vote.

      1. Very interesting points in your comment.
        This year’s election has already been distorted almost beyond recognition. More than 500,000 primary ballots were rejected this spring. Many ballots are now being rejected each day.
        Do party hacks really want to talk about legitimacy?

      2. A possible worthwhile federal response to late ballots be to say to the states:

        “Your electors are voting on November 3rd or not at all. You can choose to count the ballots after the fact if you wish. The other issues are your problem, not ours”

        1. Is that the President, the Attorney General, the Congress, a federal court, Kayleigh McEnany, Rudy Giuliani, or a 3 a.m. tweet from Dan Scavino talking, as you envision this?

        2. The Electoral Vote is on 14 December.

    7. “A judge sworn to decide impartially can offer no forecasts, no hints for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”

      Ruth Nader Ginsburg during her confirmation hearing in 1993

  6. I have a very simple rule—anyone that worked for George W Bush should never get a job in government. The Bush administration lied us into an asinine war including trying to get the CIA to torture detainees in order to elicit false confessions tying Saddam to 9/11.

    1. Your rule is just naked partisanism. Your right of course, but ample grounds to ignore everything you say because it is substance free.

      1. No, W Bush was a failed president by October 2004 and he chose to divide the country by running on protecting gay marriage (I refer to hetero marriage as gay marriage because it’s super gay and dumb). Look at all of the Republicans coming out against the clearly incompetent Trump…where was that in 2004??

        1. Yes, you are just a naked partisan.
          If you say that W made the worst decision by a President of any in your lifetime by going into Iraq, then I’d agree with you. And if you say that plunged us into irretrievable national debt, then I’d agree with you.
          But no, you only have SJW reasons.
          So yes, you display only naked partisan memes.

          1. I have said those things repeatedly…I just didn’t feel like repeating myself and I wanted to remind other commenters about 2004. My issue is in 2004 after he lied us into war Republicans stuck by him…and it was disastrous. Furthermore Trump won because Bush bankrupted the Republican Party and Republican voters didn’t trust the Republican establishment after they stood by Bush.

            1. “Trump won because Bush bankrupted the Republican Party and Republican voters didn’t trust the Republican establishment after they stood by Bush.”

              There I tend to agree with you.

              1. What are your thoughts on calling “hetero marriage gay marriage because it’s super gay and dumb”?

    2. There may be something to that, after all James Comey was an official in the Bush Administration and what an unethical lying piece of shit he turned out to be.

      But it’s not a good rule because Barr has been pretty good.

      1. Tillerson, McGhan, McCabe, Rinsed Penus, and Rosenstein are examples of people loyal to W Bush that for some reason Trump initially surrounded himself with before figuring out what was going on. Comey and Mueller are also examples of Bush loyalists. Not everyone that served under HW Bush and W is a Bush loyalist…Cheney and Rumsfeld aren’t Bush loyalists and Bolton probably isn’t either but Bolton obviously was never going to be a Trump loyalist like Pompeo and Barr.

      2. When did Barr work for George W. Bush?

  7. She is not an activist judge. That is the left’s problem period. And regarding precedent there is plenty of bad precedent.

    Dredd Scott, separate but equal etc. that was undone by later courts.

    Undoing the over step activism of previous courts is not being an activist. Its called “fixed that for you”. Its not just Roe V Wade it’s also Kelo. There is plenty of low hanging fruit.

    1. She’ll never get the chance, clinger.

      Adult supervision — and reason — will arrive in January (or, for the Court, the first few months of 2021).

      Justice Barrett will soon be whining in dissent.

      1. “Clinger”.

        You do realize that the people bitterly clinging to guns and religion were Democrats in that quote, right?

        1. Being a clinger is not improved by Democratic registration. Stale, ugly thinking is not improved by Democratic registration. Being a half-educated bigot is not improved by Democratic registration.

          Most bigoted clingers and half-educated culture war casualties are Republican, though.

      2. Choose reason over bigoted viewpoints and willful ignorance.

        Tip your head back, close your eyes and taste the refreshing elixir of liberty and reason. Let it wash away dislike for women who threaten your worldview.

        It’s coming, Rev. Kirkland. You can’t stop her.

        1. I can’t stop Barrett.

          You can’t stop enlargement of the Supreme Court, admission of a few states, enlargement of the House (and Electoral College), establishment of a single-payer health care system, enactment of a new Voting Rights Act that criminalizes voter suppression, elimination of the filibuster, naming the Supreme Court building for Ruth Bader Ginsburg, expansion of the lower federal courts, or similar measures Democrats will soon be positioned to arrange.

          Looking forward to next year, Kagami? I am.

          1. RALK @ 12:56:
            “Looking forward to next year, Kagami? I am.”

            Yes, I actually am. If control of the Senate changes, it will be an interesting time. I suspect the law of unintended consequences will become better known. More on that later.

            1. Is this a foreshadowing of a ‘Democrats are going to rue the days they won the House, won the Senate, won the presidency, diminished the structural amplification of backwater votes in our system, enacted universal health care, criminalized voter suppression, admitted some states, established a progressive majority at the Supreme Court, and held Donald Trump to account’ argument?

              Mocking you guys has never been easier.

              1. RALK @ 4:17 pm:

                Reading and understanding what was written at 3:04 pm, “Democrats” were never mentioned. Any unintended consequences would be of a more “strategic” nature and transcend national political parties.

                And the “you guys” retort is unfortunately the sort of response one expects from someone when they get called out for poor behavior – in this case bigoted comments.

                Sleep well, RALK. The next several weeks are going to be interesting for sure.

    2. The problem is there is no basis for ACB’s reversal of precedent other than she just doesn’t like the result. Separate but equal was undone because it was demonstrated that the underlying premise was completely false. That likely applies for Kelo, but Roe is a much tougher question. As a matter of Constitutional jurisprudence yes it is lousy (even the late RBG thought so), but there are reasons why the result may still be correct. Johnson v. Eisentrager calls into question whether the Courts would have jurisdiction over an unborn fetus. At least prior to the point of viability outside of the mother’s womb what is the state’s interest? Yes it is potentially life, but if she gave birth naturally the following day the fetus would not be able to live.

  8. I don’t see how this type of essay will really persuade anyone anymore. Are these things being written just out of old habit?

    If you think that the constitution takes no position on the social issues of the day in liberal circles (abortion, LGBTQ, etc.) and/or you think it takes conservative positions on things of interest in conservative circles like religion, guns, and property, then Barrett is your nominee. If you think the reverse, she’s not.

    The country has reached the point where Senators vote on nominees on almost pure party lines, based on whether they think the nominee will be receptive to their party’s positions on its issues. They are treated as party functionaries plain and simple.

    Sure, there’s still an element of ceremonial judicial independence. Justices aren’t quite blatently reduced to being ceremonial figureheads or stuffed-shirt extensions of those appointing them like electoral college people, at least not yet. They have to have certain resume features. They have to speak the specialized legal jargon. There are various ceremonial rituals signalling power, just as there are with the British Monarchy and House of Lords. Once appointed, people still have to live with them.

    But the fact is, nobody really cares about the qualifications, fluency in legal topics, etc. once these are at high enough levels to avoid raising Bar Association eyebrows and get in the door. The sole reason every (maybe almost every) Senator is going to vote either for or against Judge Barrett is whether they think she will vote their way or the other way on the issues they care about.

    Sure, in each case she’s expected to write some dozens of pages of text purporting to derive her vote from constitutional text, precedents, interpretive principles, and either. And she needs to be competent and writing it. But nobody cares squat about what it actually says anymore than they care what the Queen of England or the House of Lords thinks on issues. It is rapidly becoming mere ceremony. We are entering a phase of ceremonial legalism, in which the ceremonies of legal niceties and legal reasoning are mere formalities that accompany the reaching of the desired result. They are expected to be fancy, like the fancy paper they are printed on. But like fancy paper in the age of the internet, it is all just for show.

    1. What you’re missing here, in this analysis, is the component of persuasion that good legal scholars bring to the table. Sure, there is some motivated reasoning involved, particularly for living constitutionalists, but as the sophists knew, rhetoric matters.

      Also, there is the legitimization that courts provide. The Supreme Court in particular, plays small r republican schoolmaster all the time on what it means to be American and on citizenship…people listen.

    2. You paint a very pessimistic picture, ReaderY.

      1. Seeing as it was known that, absent a scandal or surprise upset, the senate would confirm whoever Trump nominated before November, is it really pessimistic? The senators aren’t voting based on Barrett. They are voting based on Trump. To ignore this may be “optimistic”, but it’s also idiotic.

        1. What’s idiotic is concluding that a group of mostly conservative senators are prone to confirm a well-qualified conservative, originalist judge because…Trump.

          1. I said “Trump” because he is the sitting Republican president, but no, there’s nothing special about him beyond that.

            The point, which went over your head, is that as ReaderY said, it’s all theater. Whoever Trump had nominated would have gone thought he exact same motions, the exact same effusive praise, the exact same meaningless non-answers. The last three days didn’t actually matter, because the vote next week was set withing hours of each Senator hearing about Ginsburg’s death. They don’t care who they’re voting for: it’s all theater and shadow plays.

    3. I largely agree with this.

    4. “We are entering a phase of ceremonial legalism…”

      No we aren’t. Legal reasoning may not matter to Senators, but it matters a whole lot to the groups from which Supreme Court Justices are plucked. The precedents that will get overturned will be the ones with the least compelling legal reasoning.

      The Court is much closer to its original role than it was at the height of the Warren or Burger courts. The idea that we’re moving in the wrong direction is preposterous. Who are you pining for? Taney? Van Devanter? Brennan? Fortas? Kennedy?

      Go look back at older courts. I could scarcely pick a better lineup than the one we have right now. Name a better Chief Justice.

    5. Mark Movsesian in First Things on why Barrett should be confirmed is the basically bishop in the cathedral giving a homily to the canons.

  9. “It is rapidly becoming mere ceremony. We are entering a phase of ceremonial legalism,”
    I am afraid that you are correct. We heard that in spades the past two days.

    1. “Phase of ceremonial legalism…”

      AKA preamble to Civil War.

      1. All-talk, impotent clingers are among my favorite culture war casualties.

        Open wider, Jimmy.

  10. I think she will disappoint Republicans and conservatives in many cases and many instances, thought perhaps not as bad as Roberts. I’d say why I have that opinion, but I will avoid the charges of misogyny. The only clear indicator we have that she will not disappoint, from me watching two days of hearings, is on the 2nd Amendment.

    1. I don’t think a Justice Barrett will get much chance to disappoint conservatives. They’ll be too busy smarting from a series of 7-6 smitings to worry much about the content of her dissents.

      1. Then all those decisions can be reversed in 4 years by the new 9-6 majority. See how that fun game works?

        1. That’s not how it works in a world of 106 senators, 635 representatives, 738 electoral votes, no filibuster, and an electorate that is improving every day (less White, less bigoted, less rural, less religious, less backward).

          How are Republicans going to take the White House and the Senate in the new world, in which the structural, undeserved amplification of rural voices has been substantially diminished?

          1. … Rev, have you been drinking Blackman’s kool-aid?

          2. Oh so the plan is to just rig the system once turning the USA into Banana Republic. Got it. Good to know. Don’t be surprise what is coming your way when the time comes…

            1. Everything that occurs will be conducted in precise compliance with applicable law and meticulous congruence with ample precedent. It also will align with the preferences of most Americans — especially the educated, modern, decent, accomplished Americans.

  11. I did love that Webster’s Dictionary changed a definition then attempted to memory hole it because of the hearings. That was extra special.

    1. You’re kidding, right?

      Gay folk have been fighting against that kind of “preference” language since before Cruz’s minions lost at the SCOTUS to keep gays illegal in Texas.

      Religious nutters who think you can pray away the gay have, of course, kept to it. Because as long as they describe it as “same-sex attraction” (like the Latter Day Saints prefer) or “sexual preference” (like Barrett) they can claim they’re not discriminating against a person, but a behavior, lining up with their sophistic “love the sinner, hate the sin” nonsense.

      This isn’t new. It’s old. Very old.

      1. Then Webster’s decided to not change it until Wednesday.

        https://www.usatoday.com/story/news/politics/2020/10/15/amy-coney-barrett-merriam-webster-tweaks-sexual-preference-entry/3662507001/

        But everything except for sexual preference is a social construct, right?

        1. Agreed, gender is a social construct, and something that one can “identify with,” and we can have “preferred pronouns,” and excoriate those who mis-gender us according to our choice; but gay/bi/queer is an immutable identity? Such bullshit.

          1. One person who I interact with tangentially will change their pronouns about once every 3 months. Then they will get mad if you call that person by their “old” pronouns after the change.

        2. … and?

          She should have known better. Hell, I find it hard to believe that she didn’t know better. Nobody uses that kind of language without knowing what they’re doing, certainly not a woman in her forties who hasn’t had a reason to check a dictionary about the right way to refer to gay people in decades (if ever).

          Defend her if you want, but you –and she– aren’t fooling anyone.

          1. So the guy who says “religious nutters” in a comment above thinks we should be all touchy-feely about using sexual preference. Yeah, ok…

            1. Don’t be absurd. I would never expect Reason commentators to be “touchy feely” about anything.

              What I desire (but do not expect) is that y’all don’t pretend ignorance when you know exactly what you’re doing.

          2. “She should have known better. Hell, I find it hard to believe that she didn’t know better. Nobody uses that kind of language without knowing what they’re doing…”

            Biden used in in May. RGB used it in 2017. Examples about of people using the term “sexual preference” non-offensively recently.

            Why don’t you just admit that you’re wrong about the term?

            1. Because I’m not.

              In case you forgot, ridiculously old people (which includes Biden and RGB both) tend to get allowances about using outdated terminology. ACB… is not old.

              1. Are the Webster’s dictionary people ridiculously old? Because at the time Barrett used the term, the dictionary listed gave “sexual preference” as an example, and did not label it offensive.

                Of course, it’s easy to get lots of misinformation when one political party controls not only the news media, but the dictionaries.

            2. Because I’m not.

              And maybe you never had a racist grandpa, but old folk largely get the “they’re old, they don’t know better” exception on lots of stuff.

              Feel free to call Barrett an idiot. I won’t.

        3. So according to their spokesdude, Webster’s was planning on changing the entry anyway, they simply expedited their pre-existing plans in response to the hearing.

          Absent the hearing they would totes have changed the entry eventually.

          1. Despite the fact that the new entry is wrong, in that the term is often used non-offensively.

            It certainly doesn’t look good to have a dictionary jump in and change meanings of words in response to an ongoing political spat.

            The whole reason that people were looking at the word is that there is a large variation in whether or not people believe that the term is offensive. The entry should reflect that. They could say, “sometimes offensive,” for example.

  12. I preferred her to Kavanaugh, a Yale indoctrinated scum bag. All Ivy indoctrinated alums are big government, little tyrants. They all believe they know how we should live. All Ivy grads are disqualified from any responsible policy position in government. They also had very grades to get accepted into the Ivy League. That means they studied 80 hours a week from childhood. That is a total disqualifier, being a book worm.

    Trump did not listen to me, and had to endure the Kavanaugh Hearings. That was the consequence of listening to scum bag lawyer advice.

    The next change in qualifications should be to exclude anyone who has passed 1L in any law school from any responsible policy decision. If you passed 1L, you are an indoctrinated member fo the biggest, most powerful, richest criminal cult enterprise in the world. You have supernatural core beliefs, despite your high IQ. You are more loyal to the cult of the lawyer profession than to the country, and your thinking is unlawful in our nation with its secular constitution. You adhere to the Catholic Church Catechism in the common law. No lawyer should sit on the Supreme Court.

    1. I read an interesting article proposing that the Supreme Court be a committee of the Senate. The Senate sends the slate to the President for appointment then confirms those. They serve in the capacity of justice until they either retire, lose election, or don’t run. Then they take “senior status” in the judiciary. Almost like how the Law Lords function. Don’t think it will fly but interesting concept.

      1. Any alternative to know nothing, did nothing, bookworm lawyers is an improvement. They make national policy on highly technical subjects, and don’t know anything. They just memorized books, and got high grades on tests.

      2. Agree nearly anything would be better than the current system.

    2. Also according to liberal Kav must be really good at time management having studied 80 hours a week, and spent all that time raping and drinking. Must be one heck of a multitasker.

    3. You unintentionally raise a tangential point.

      During/after Kavanaugh’s hearings, Republicans and conservatives of all stripes were loudly proclaiming that it was just Democrats lashing out over Garland. They claimed (weirdly) that this backlash didn’t happen to Gorsuch because it was “Scalia’s seat” or something, but that all future hearings were going to be so contentious.

      While ACB is not likely to get many (if any) cross-over votes from Democrats, the hearings and process have not been contentious, at least as they relate to her. The friction has been over McConnell rushing the nomination so close to the election.

      Which is to say… Barrett’s nomination process has been entirely unlike Kavanaugh’s nomination process. It seems that the folks who were saying that the furor really was over Kavanaugh, and not meta reasons, who right.

      1. Democrats lost seats in the Senate. The voters did not like the aggressive Democrat lawfare style of the Kavanaugh Hearings. That can be done to anyone. At age two, you threw your food and hit your mother in the face. Let’s have a full, in depth, investigation of this Republican mother food thrower.

  13. Volokh, with an IQ twice mine, refuses to see the common law was plagiarized from the Catechism. How any Jewish law student can allow himself to be indoctrinated into supernatural, Catholic Church doctrine, from 1275 AD, yet, can only be explained by an indoctrination effect. It is a sin, a crying shame, and ridiculous. Volokh is a First Amendment expert, yet is blind to this stark, self evident reality. That is really effective indoctrination. It can happen to the most intelligent person, or perhaps, especially to intelligent people. They learn easily what they are taught. He refuses to discuss this subject, and has just blocked me from the Blog in the past. Shunning, is, of course, very cult.

    1. “Volokh, with an IQ twice mine…”

      Sick burn, bruh.

  14. Why or why do people continue engage with trolls named after sceanary chewing characters in bad movies?

    Masochistic behavior.

  15. as a faithful Catholic

    I’m pretty sick of this formulation. Conservative Catholics are no more “faithful” than liberal ones are.

    Conservatives within the Church have tried to win this battle for years, trying to wihhold Communion and otherwise drive liberals out of the Church, because they hate that there are people who identify as Catholic and don’t agree with them. But the Vatican has, over and over again, over several Papcies, told such conservatives to go screw themselves. They want the membership and the prestige that comes from it, and kicking 95 percent of the believers out of the flock by declaring them “unfaithful” is not the way to maintain that.

Please to post comments