Supreme Question

By Tasawwar Rahman (’22) and Leah Raymond (’22)

On September 18th, 2020, the late Justice Ruth Bader Ginsburg sadly passed away.  Without batting an eye and mere hours after it was announced, Senate Majority Leader Mitch McConnell immediately announced that if President Trump were to nominate the 115th Justice, the nomination would receive a vote on the Senate floor.  Just eight days after Justice Ginsburg’s death, President Trump announced the nomination of Judge Amy Coney Barrett to the high court.

Her nomination and confirmation process were riddled with political strife fueled by the upcoming election.  Democrats pointed to the potential loss of healthcare for a significant share of Americans, the fact of her nomination being a mere month and a half away from an election in which millions had already voted, as well as the hypocrisy of Republicans as a similar situation arose just four years prior.  Republicans, on the other hand, referenced Justice Barrett’s impeccable credentials and qualifications, the President’s responsibility to confirm justices in a speedy manner, and how her nomination fit in with historical precedent.  On the evening of Monday, October 26th, just eight days before the election, the Senate voted to confirm Judge Amy Coney Barrett as the 115th Justice of the United State Supreme Court.

Below, Tasawwar Rahman and Leah Raymond will discuss each side of this contentious nomination process.


For: Supremely Qualified

By Leah Raymond (‘22)

Justice Amy Coney Barrett reveals she took no notes during her confirmation hearing.  Image courtesy of New York Post.

Steeped in controversy and riddled with claims of hypocrisy, Justice Amy Coney Barrett was confirmed as the 115th Associate Justice of the United States Supreme Court.  Not only was Justice Barrett’s nomination according to the precedent that the United States has set since its founding, but also a step forward with the introduction of a new perspective to the Court.

First and foremost, it is crucial to note that a president does not stop being a president during the final year of his term.  And even after the election in early November, the president must still fulfill his presidential duties for the following two months — the United States is not left without a leader for the time between the election and inauguration.  Many are quick to assert that as it is an election year, the candidate who is elected to be the next president of the United States should be the one nominating the next Supreme Court Justice; however, let the American people be the first to declare that they not only elected a Republican president in 2016, but also a Republican Senate since 2015.  An election year should not prevent our government from doing its job to the fullest of what it was elected to do.

Another point that liberals and conservatives alike point to is Mitch McConnell’s 2016 assertion that the Republican Senate would not confirm former Democratic President Barack Obama’s Supreme Court nominee due to the 2016 election.  What many fail to reference, however, is the history behind McConnell’s decision.  Throughout the history of the United States, there have been 29 cases in which a Supreme Court seat has been vacated either during an election year, or even during a president’s lame-duck session.  Out of the 44 men to have held the presidency, 22 of them have been faced with this predicament, and each of the 29 times that this has happened, the president has made a nomination for the next Supreme Court Justice, regardless of whether or not their party held the majority in the Senate.  19 of those times, the President and Senate have been of the same party.  To break the numbers down, ten of those same-party nominations happened within the election year but before the election, and of those ten, only one (Abe Fortas, 1968) was not confirmed due to ethical challenges.  The other nine nominations happened in the lame-duck period after the election but before the inauguration, and of those nine, again only one (William Paterson, 1793) was not confirmed due to technical reasons, but was indeed later confirmed.  Furthermore, a third of the nominations made in the lame-duck period were made by presidents who had already lost the reelection.  In the other ten instances when the President and Senate were not of the same party, only 10% of the time has a nominee been confirmed, and that confirmation was more than unusual and due to pressure from backlogs in the Supreme Court’s docket.  While Democrats point to McConnell as setting a new norm in 2016 for what should be expected in an election year, it was in fact the Republicans who upheld historical precedent for the procedures of such a year.  If the American people voted for a difference in party between the President and Senate, it is custom to hold the vacancy open in an election year for the voters to resolve the dispute, as seen in 2016.  However, if there is no dispute between the branches of government, as seen now in 2020, then there is no need to ask the voters to resolve one.

Furthermore, the addition of Justice Amy Coney Barrett to the Supreme Court will add a new, and much-needed perspective to the Court as a conservative woman.  The Gender Gap is more than visible on the Court: before the passing of Justice Ruth Bader Ginsburg, three-quarters of the liberal-leaning justices were women, and all of the conservative-leaning justices were men.  With the addition of Justice Barrett to the Supreme Court, Americans will see a court that starts to more closely mirror the population of their country, and can more accurately represent the thoughts and opinions of all Americans.  It is commonly said that Republicans are far too ignorant of a woman’s plight, and Democrats are far too ignorant of a man’s, so the addition of a female Republican to the court will work to balance the right’s insensitivity to a woman’s plight with a female perspective.  Justice Barrett’s opinion will not only add to the conversation of women’s rights in general but especially to the conversation of abortion as many Americans see Roe v. Wade potentially being brought again to the Supreme Court.  Abortion is typically regarded as a woman’s issue, but the decision enacted in 1973 was decided by nine male justices.  Justice Barrett adds not only a woman’s, but a woman’s pro-life perspective to the matter, and in turn upholds the Declaration of Independence’s assertation of the unalienable rights of life, liberty, and the pursuit of happiness, for all people.

Some hold reservations regarding Justice Amy Coney Barrett’s religion, citing that she is an incredibly devout Catholic, and that her personal moral opinions will too extensively play into her judicial decisions.  However, Justice Barrett is known for her adherence to the Constitution, and refraining from judging from the bench.  Throughout the confirmaton hearings, Justice Barrett was careful to adhere to regulations and did not express her thoughts and opinions, though asked to do so, on the hot-button issues that her faith may decide.  Furthermore, even minimal research on the Catholic Church’s position on many political issues reveals that Catholic beliefs are in fact quite moderate, and many aspects of Catholic beliefs stand liberal on various issues.  Many people immediately associate “Catholic” with “very conservative,” which may lead to reservations, but Justice Barrett, as a practicing Catholic, is most likely not as right-leaning as many make her out to be.

Finally, there is no question as to whether or not Justice Amy Coney Barrett holds a wealth of qualifications as a justice on the Supreme Court.  From her decade and a half of experience as a professor of law, to her extensive experience practicing law, to her appointments on to both the Advisory Committee on Federal Rules of Appellate Procedure and the U.S. Court of Appeals for the Seventh Circuit, to clerking for the late Justice Anonin Scalia, Justice Barrett has proved herself to be more than qualified to be the 115th Supreme Court Justice.  Fellow professors and well-renowned law schools across the nation have affirmed her qualifications, and she has received praise from both parties for her work.  She has an excellent judicial record that demonstrates her to be ready and worthy to serve Americans on the Court.  

The Supreme Court of the United States is not a place for partisan agendas, but rather for the most qualified, just, and fair-minded judges in the nation to help shape the United States’ future.  Justice Amy Coney Barrett is a perfect example of a fairly nominated and confirmed justice who will work to uphold law throughout the nation.


Against: Supreme Hypocrisy

By Tasawwar Rahman (‘22)

Justice Amy Coney Barrett at the Rose Garden (superspreader) event to announce her nomination. Image courtesy of the New York Times.

On October 26th, 2020, a mere eight days before the 2020 presidential election, Justice Amy Coney Barrett was sworn in as the 115th Associate Justice of the Supreme Court, following what was likely one of the most hypocritical confirmation processes in modern American history. But to fully understand the circumstances behind Justice Barrett’s inappropriate confirmation, one must first go back to February of 2016.

On February 13, 2016, the late Justice Antonin Scalia, a giant of the conservative legal movement, passed away. About one hour after the news of Scalia’s passing, Senate Majority Leader Mitch McConnell announced his intention to stiff any nomination before the upcoming presidential election. “The American people should have a voice in the selection of their next Supreme Court Justice” McConnell boldly asserted, despite the election still being 10 months away. With neither the courtesy of a hearing nor a vote, Republicans were all too happy to leave the seat vacant for over a year until the time came when they would be back in power. However, when this same situation arose on September 18, 2020, just forty-six days before the election due to the passing of the late Justice Ruth Bader Ginsburg, McConnell made a sudden about-face. Today, just as Democrats had rightly asserted four years prior, Republicans claim that they have an “obligation” to fill the seat, that ‘the President does not stop being President in an election year.’ In doing so they have shown the American people who they really are.

The Majority leader will falsely claim that the Senate’s abdication of duty with regard to the 2016 nomination of Judge Garland was steeped in precedent and tradition, but this is a lie. In fact, the precedential arguments for that action are unsurprisingly weak. Presidents do and routinely have appointed Justices during election years. In the cases where a nomination has failed, it has almost always been the result of the president being unable to curry the support of his own party (often caused by presiding over a fractured party after the death of the former president) and not political sabotage. Leader McConnell was careful to choose his words in such a way so that he can paint the most outlandish portrait, that this situation is so unprecedented that you must look to Grover Cleveland for guidance yet ignores the fact that the most recent example of a unified government approving a nominee is nearly a hundred years old as well (with a more recent example of a failure). If one simply takes a closer look, they will see one such instance of when opposing parties confirmed a Justice for a seat vacant in an election year. That is in 1988 with President Reagan’s appointment of Justice Kennedy which unanimously passed the Democratic Senate.

So while Democrats don’t agree with the precedent that Republicans set, it is not unreasonable to ask that they follow it. If they say ‘let the voters decide’ with ten months to go, how can they say different with only a month and a half and after tens of millions have already voted? If they say ‘the President doesn’t stop being President in an election year,’ how can they justify the intentional dereliction of duty and refusal to consider any Obama’s nominees during his final two years in office? And if they say this is about selecting a qualified nominee to the court, then Merrick Garland would be sitting there today. In rushing this lifetime appointment, the Republican party has mistaken the American people for fools. Americans aren’t fools and they see right through what this is, a partisan power grab. The crux of their argument is that ‘we have power and so we can.’ The idea that a divided government should fail to govern is entirely arbitrary, it is nothing more than an ex post facto explanation for the intention Mitch McConnell set a mere hour after Scalia’s passing yet backtracks on when it suits him. And for all the talk of a mandate to govern (given to a President who lost the popular vote and a Senate ‘majority’ that represents less than half the country), Republicans seem deathly afraid of the will of the American people deciding the fate of the court as they had insisted upon just four years ago.

Additionally, it is certainly not an outlandish request to have the American people decide, but that courtesy must be extended equitably and the precedent kept. After all, as Senator Grassley, the then chairman of the judiciary committee put it: “a lifetime appointment that could dramatically impact individual freedoms and change the direction of the court for at least a generation is too important to get bogged down in politics. The American people shouldn’t be denied a voice.” Or as Justice Barrett put it: “we’re talking about Justice Scalia, the staunchest conservative on the court, and we’re talking about him being replaced by someone who could dramatically flip the balance of power on the court. It’s not a lateral move.” In the face of failure after failure in trying to pass their legislative agenda (even when they held all three branches of government) and just days after the election, Republicans will head to the courts once more to strip healthcare from twenty million Americans and protections for preexisting conditions from one hundred million more. Further, Justice Barrett is a disciple of Scalia’s unitary executive theory (the philosophy that AG Barr also subscribes to) which gives the president near monarchical levels of power. And she has already shown her disdain towards the right of a woman to choose what she does with her own body. 

But perhaps the greatest risk posed by Mitch McConnell’s gambit to stack the courts is the long term credibility of the judicial and legislative branches. Republicans have unleashed a fury that cannot be contained, opened a pandora’s box that cannot be closed, and nuked what remains of the foundation of trust Americans held in the judiciary. What was absurd has now become mainstream and every option is on the table, whether that be as extreme as expanding the courts or overdue as Puerto Rican statehood. While this would be a calamity, one that would shake American’s confidence in our political system to its core, it is one of Mitch McConnell’s own making. In his greed to disrupt the status quo, McConnell failed to consider the long term implications of his actions. The battle lines have been drawn and while Republicans certainly may have won the battle, who wins the war is yet unseen. Or as Minority Leader Schumer eerily warns, “the next time the American people give Democrats a majority in this chamber, you will have forfeited the right to tell us how to run that majority.”

However, the true victim in this sordid tale is Justice Barrett herself. Having read much of her writing and after following her life story, one can only conclude what a brilliant and supremely qualified jurist she would have been. Though I often disagree with her conclusions, I hold the rationale and thought behind them in the highest regard. And while under any circumstance she would have shined, it is now evident that ACB will become notorious, just not for the right reasons. Her notoriety will come from the ill-gotten role she allowed herself to play in Mitch McConnell’s bid to cheat democracy. In observing this play out, it is impossible not to note the sad irony of this story; that the passing of two iconic justices, diametrically opposed but the best of friends, will have led to so much strife and have further polarized a divided nation. And while the good nature of the American people and teachings of Christianity might be antithetical to this kind of hypocrisy seen on full display, sadly, the dogma does not live loudly enough in Trump’s Republican party.


Reflections:

Tasawwar Rahman: Obviously one can tell from my writing that I am quite passionate about this issue. While I do identify as a liberal, nothing irks me more than hypocrisy and abuse of power, something we’ve grown to know all too well these past four years. Though my position has not moved an inch, I was deeply surprised by how much I grew to like Justice Barrett. I certainly don’t always agree with her positions (though there were many cases in which I did), I can respect the rationale behind them and she has an amazing story. But regardless of my personal opinions about her, eight days before an election when tens of millions have already voted is not the right time. One of the main reasons I think this confirmation, and the courts more broadly, is so divisive is because it is seen in moralistic terms. The main motivation for many conservatives is that they morally believe that abortion is wrong whereas the liberal fury came largely from what we perceive to be blatant hypocrisy. These two feelings of morality are seemingly incompatible with the other.

Leah Raymond: I’m the conservative writer here, so most anyone would probably expect my post-article reflection to be something along the lines of “all of the research I did only affirmed what I already believed.”  But in fact, that is far from the truth.  Until doing research, particularly on what happened in 2016 versus what happened this year, I viewed Justice Amy Coney Barrett’s nomination in a relatively negative light.  Several conversations and many articles later, I can say that I have learned more than I ever thought I would, and with my newfound knowledge presented in the article above, I can now look at the nomination and confirmation of Justice Barrett more positively, especially looking at how her nomination fits in with our nation’s history.  I am a Republican, so in that regard, I support Justice Amy Coney Barrett.  I would not call myself a feminist in any angle of the word, but I would love to see a strong, intelligent, conservative woman on our Supreme Court, and Justice Amy Coney Barrett exemplifies all three of those values.


Statement from the Columnists:

The mission of “Depolarize US” is to help heal a fractured nation through productive dialogue and respectful understanding. In line with that mission, we invite everyone to comment down below and let us know your thoughts about the subject matter discussed. Which side ultimately convinced you? Has your position changed? Do you feel you can empathize with the other side?

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