Bishop: Justice Amy Coney Barrett -A Potpourri of Popery or the Subject of Slander?
Thursday, February 01, 2018
Is it possible there is a week in Rhode Island without something to write about? The best of my intentions to deconstruct exaggerated claims that the Pawsox stadium ‘pays for itself’ went out the window when a spurious slander hit my inbox announcing that Justice Amy Coney Barrett “believes the bible overrides the constitution”.
There were several peculiarities about this partisan putsch, not least of which is why my patrician fellow columnist Robert Whitcomb felt it worthy to circulate this falsehood? But equally puzzling is that ‘the Blue Wave Community’, a self described attempt to upend Republican control of government published this hit piece on January 27 describing Barrett as a “nominee” when she was confirmed to the 7th Circuit Court of Appeals by the Senate on October 31st of last year? And then of course there is the little problem that this salacious allegation is arrived at by twisting what Barrett wrote in a law journal article 20 years ago to something completely different than its meaning.
You don’t have to read the law to see these hacks are barking up the wrong tree when they cite an article that suggests orthodox Catholic judges recuse themselves from the sentencing phase of death penalty cases as evidence that the author advocates that Catholic beliefs should control court decisions.
In the liberal lion’s den
GET THE LATEST BREAKING NEWS HERE -- SIGN UP FOR GOLOCAL FREE DAILY EBLASTAnd of course its awfully funny to think that the progressives are somehow champions of the death penalty all of sudden. But of course the subtext to all of this is abortion – about which the article, examining “Catholic Judges in Capital Cases”, says next to nothing. You’ll notice that the huffpo version constructs its own context around the supposedly damning snippet: “In an article she co-wrote with John H. Garvey entitled “Catholic Judges in Capital Cases,” Barrett criticized a Supreme Court justice who once testified that a judge’s oath to the Constitution should “alone” govern how they rule from the bench. Barrett wrote that that was not a “proper response for a Catholic judge to take with respect to abortion or the death penalty.”
The problem is that Barrett took on liberal lion William Brennan who ironically faced the same anti-Catholic bigotry during hearings on his nomination to the Supreme Court and responded to those concerns: “there isn’t any obligation of our faith superior to [the judicial oath]”. Barrett and her coauthor did not agree that this was a proper statement of religious duty, but pointed out that not all Catholics follow the church’s teaching on the death penalty that has itself changed over time from acquiescence to opposition; and that those Catholic jurists who do take the present teachings as authoritative were duty bound to recuse themselves where those beliefs prevented them from impartially applying the law, as in death penalty sentencing.
Wise Latinas but no Wise Catholics
To imply the Amy Coney Barrett would be Popery run rampant in the courthouse is but a continuation of worn tropes about how John Kennedy would serve the Pope rather than the people. But unlike the debate over Sotomayer's invocation of the perspective of the ‘wise latina’ for better decisions -- a much more direct implication of the role of identity in judicial outcomes -- Amy Coney Barrett never suggested that wise Catholics ought to gerrymander judicial outcomes where their religious perspective was at odds with the rule of law.
Still, like Sotomayer, Barrett backed water on the manner of her expression. That is unfortunate as the law journal article seemed neither intemperate, inappropriate or inaccurate. Indeed Barrett did say she stuck by the conclusions of the article, but of course those didn’t interest her critics as they were a fairly mainstream perspective on judicial recusal.
The Presidents of the University of Notre Dame University and Princeton University deserve credit for calling out Diane Feinstein’s religiously based attack on Barrett as tantamount to an inappropriate religious test for office.
Roeing upstream
I am not as disturbed by Roe's reliance on substantive due process, but rather wrestle with its failure to comprehend the rights of parties in countervaling interest with the right of privacy it announces. But progressives who celebrate the vacating of the right to contract in favor of minimum wage and labor laws have a more diffcult case to defend Roe. How indeed did a non-textual substantive right to privacy emitting from the self-same penumbra that spawned the Lochner era, so derided by progressives, become the very peg on which Roe hangs its hat?
Barrett’s sin according to Feinstein is a lack of due regard for precedent, i.e. Roe in particular. Ms. Barrett wrote in a more recent law journal article that she agreed with those who say that it is “more legitimate” for a justice to “enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” In this respect she is little different than that race traitor Clarence Thomas who has the silly opinion that if the court gets something wrong we should revisit it. . . . because, after all, if stare decisis (the latin phrase invoking the principle that future cases be decided based on the former) is so great, we ought still be ruled by Dred Scott (that cast slaves as property not people) and Plessy (that gave us separate but equal education).
There is a degree of hierarchy here. Vertical stare decisis requires lower courts to observe the precedents set by higher courts and Barrett never questioned that, indeed invoked it. But higher courts sitting en banc (as the Supreme Court always does, and the 7th circuit on which Barrett now sits only rarely does) can overrule their own precedents. So this debate is over how strongly to favor precedent over possible error when a court reviews its own precedents.
The sudden champions of Stare Decisis are not of course looking for a return of chattel slavery – that’s the Trump voters, remember? But progressives have their own shibboleths which they don’t wish to see disturbed. Respect for Stare Decisis is really just about whose ox is getting gored. And Amy Coney Barrett had the temerity to suggest that weakening the control of potentially poor precedents did not threaten the continuity of law, given other structural protections for its stability, e.g. “the prohibition on advisory opinions [limiting judicial fishing expeditions], the obligation of lower courts to follow Supreme Court precedent [the vertical Stare Decisis cited above], the Court’s certiorari standards [limiting the number of cases reviewed], its rule confining the question at issue to the one presented by the litigant [limiting scope of appeals], and the fact that the Court is a multimember institution whose members have life tenure [giving consistency over the service of various justices].”
Thomas is refreshing
Indeed, Thomas's approach to precedent is the most refreshing thing to hit the court in 200 years. In his chambers, constitutional issues are debated de novo. Only once a decision has been made as to how the Constitution answers the question presented is intervening precedent considered to contemplate whether reliance interests or other institutional factors should afford weight to precedent that cuts against what the Justice considers the Constitution to say on the matter.
The irony of this slanderous smearing of Barrett is that she would most likely not have been confirmed had the Democrats not first broken with tradition and employed the ‘nuclear option’ in appellate confirmations, setting the precedent for suspending the 60 vote cloiture requirement in the Senate. They have only themselves to thank for this outcome.
Republicans surely have played hardball with confirmations but 9 Republicans joined Democrats to confirm Sotomayer who toyed much more seriously with the idea that ones identity ought to define one’s judging. 3 Democrats broke ranks voting with Republicans to confirm Barrett to the 7th circuit where I am thankful she sits.
Why anyone thinks its useful at this late date to send out fraudulent criticism of the women who has already been confirmed is beyond me. But if this represents the best work the resistance has to offer then perhaps there is hope that the whole thing will collapse of its own dead weight.
Brian Bishop is on the board of OSTPA and has spent 20 years of activism protecting property rights, fighting over regulation and perverse incentives in tax policy.
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