Illustration of Judge Amy Coney Barrett
Illustration by Maya Winshell

Criticizing judgements of SCOTUS nominee

Barring any surprises in next week’s confirmation hearings in the U.S. Senate Judiciary Committee, Judge Amy Coney Barrett is poised to become the next associate justice of the U.S. Supreme Court.Barrett will be replacing the late Associate Justice Ruth Bader Ginsburg. While there were many names on President Donald Trump’s shortlist of potential nominees, Barrett was a favorite among evangelical Christians, a group that makes up a significant portion of the president’s base going into the 2020 election.

In the weeks that have followed Trump’s announcement of Barrett’s nomination, I have seen a wide range of criticism of Barrett. Though I think Barrett is deserving of serious criticism, it is important to be mindful of the way we criticize her. As liberal arts students at Lewis & Clark, we are taught to be critical thinkers. When we talk about political figures who we do not like, we should ground our positions concretely rather than resorting to stereotypes, surface-level characteristics or labels like political party affiliation that do not tell the whole story.

Criticism of Barrett should not be solely centered on her gender. I do not expect this to be common at LC, but I remember seeing Tweets wondering how Barrett could be an effective justice as a mother of seven, implying that she should prioritize taking care of her children over her career. This line of criticism is grounded in sexism and gendered stereotypes that should have no place in our political discussions.

The second main criticism I have taken issue with is that her religious identity should disqualify her for the job. It is true that Barrett is a devout Catholic, but that alone should not have an impact on attitudes toward her fitness for the court. After all, there are self-identified Catholics of all political leanings serving in our government, including liberal figures like Associate Justice Sonia Sotomayor, Speaker of the U.S. House of Representatives Nancy Pelosi and current Democratic presidential nominee Joe Biden. We should have no sort of religious test when it comes to deciding who serves in our government. Beyond this being a violation of the U.S. value of religious freedom – which admittedly is often unfairly twisted to achieve political objectives – a religious test could just as easily be used to disadvantage other religious groups like Jewish people and Muslims.

However, where Barrett deserves criticism is applying her religious beliefs to her interpretation of the Constitution. In a 2006 commencement speech at Notre Dame Law School, both her alma mater and where she taught law, Barret said that the legal career is a vehicle for “building the kingdom of God.” The idea that any judge might use their career as a means to further their personal religious doctrines is a dangerous infringement upon the separation of church and state valued in the U.S. 

Barrett has already made clear her support for spreading Catholic doctrine through law and past comments. In 1973, the Supreme Court extended the right to privacy to include a woman’s right to an abortion in Roe v. Wade. Although the case included limits on the right to abortion, it was still a landmark case that gave women the control over decisions that impact their own bodies. In 2006, Barrett was among several people who signed onto an advertisement in a South Bend, Indiana, newspaper that called for the Supreme Court to overturn Roe and “protect the lives of unborn children.” 

Although Barrett has said before that Roe is precedent that she is compelled to uphold, she would not be bound by precedent as a Supreme Court justice. She would be able to overturn previous decisions using whatever reasoning she would like. This would allow her to make decisions based on her religious beliefs so long as she claims her viewpoint is grounded in the Constitution.

As a member of the Supreme Court, Barrett will be influential in making decisions that affect the lives of Americans, and in particular LC students. Beyond what I have discussed, there are concerns of how Barrett will approach cases on healthcare, LGBTQ+ rights, voting rights and other civil rights issues, especially with Associate Justices Clarence Thomas and Samuel Alito recently signaling their support for overturning same-sex marriage.

Barrett’s lack of experience should also be questioned. After attending Notre Dame, Barrett clerked for the late Associate Justice Antonin Scalia before returning to her alma mater to teach law starting in 2002. In 2017, Barrett was appointed to the U.S. Court of Appeals for the Seventh Circuit, where she has served since. In other words, she has served as a federal judge for less than three years.

In contrast, Associate Justice Stephen Breyer served on the U.S. Court of Appeals for the First Circuit for 14 years before being nominated to the Supreme Court by former President Bill Clinton, and Associate Justice Neil Gorsuch served on the Tenth Circuit for 11 years before being nominated by President Trump. Few justices in recent history have been nominated to the Supreme Court with as little experience as Barrett, bringing into question her fitness for the job.

However, there is no set requirement for past experience before being nominated to the court. Outside of teaching law, Associate Justice Elena Kagan had only served as the Solicitor General for the Supreme Court for just over a year before she was nominated by former President Barack Obama. While a lack of experience as a federal judge should not be disqualifying in the nomination process, it is fair to question whether Barrett’s limited time as a federal judge has adequately prepared her for sitting on the most important court in the country.

Barrett is certainly deserving of criticism for her goals in the legal profession and her interpretation of the Constitution. However, we must be careful not to resort to sexist attacks or complaints grounded in religious identity alone. As LC students and global citizens, we should hold ourselves to a high standard and ground our criticism of those we disagree with in facts and reason. Criticism purely grounded in emotion and assumptions is neither productive nor constructive and will not give any credit to any arguments we seek to make

Though we cannot know for sure where Barrett would come down on every issue brought before the Supreme Court, we must be serious in how we evaluate her. After all, the position she has been nominated for lasts for as long as she is willing and able, and as someone under the age of 50, Barrett’s impact on the court could last for decades to come and will shape the country that future generations will have to live in.

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