Amy Coney Barrett Will Take the Supreme Court Down a Dangerous Path. The Senate Should Vote to Confirm Her Anyway.
Zach Leiter '21
The nomination of Amy Coney Barrett to our nation’s highest court by a president unresponsive to the nation’s will is, as Senator Cory Booker (D-NJ) put it, “profoundly concerning.”
Her record on civil liberties is deeply worrying; while she has refused to state her position on Roe v. Wade—the court’s landmark decision on access to abortions—in 2016, she said she believes that access to abortions should be further limited. Her mentor, the late Antonin Scalia, believed that Roe was wrongly decided.
In her nomination hearings, Barrett said “I am not hostile to the Affordable Care Act,” but her willingness to uphold the vital health care coverage legislation is questionable. In 2017, she criticized Chief Justice John Roberts for upholding the constitutionality of the Act’s so-called individual mandate.
In Obergefell v. Hodges, the 2015 case that declared that same-sex couples have a right to marry under the 14th amendment’s Equal Protection Clause, Justice Scalia dissented. His mentee has declined to state her views on the decision.
All of these stances worry me--as a liberal, and as an American who believes in the importance of equal protection under the law. Equally worrying is Barrett’s failure to answer a simple no, when asked whether the president has the power to postpone an election. To put it simply, Amy Coney Barrett would be a conservative justice in a liberal country at a time when our nations’ political institutions are already wholly unrepresentative of the people’s will. The president was elected without a plurality of votes. The Republican Senate majority represents 15 million fewer Americans than the Democratic minority.
But, what did we expect? There is nothing inherently wrong with a Republican president nominating a conservative justice, as long as that justice has the appropriate legal qualifications—which Coney Barrett does. Barack Obama’s nominees were more liberal, and Bush’s more conservative. That is the way our judicial system has been built to function, and as much as I may dislike that design and this individual justice right now, it is the function of the government that we have. And, it is the function of the government we have, not the function of the government we want, that matters. I strongly believe in the importance of our many of our nation’s institutions, among them the judicial system, and that belief triumphs over my partisan allegiances.
Whether Senate Republicans maintain any semblance of morality is beside the question, as is their hypocrisy. When, in 2016, President Obama nominated Merrick Garland to the court, Democrats supported Obama’s right to do so. I supported his right to do so. The difference now is which party is in power, and as Senate Majority Leader McConnell (R-Ky.) and Senator Lindsay Graham (R-SC) walk back their words, Democrats need not follow the same path. This president, though elected by an unfair system, is still the president elected by our system. The American system is failing, now, but that does not mean we should abandon it. We must rework it, yes, but we must also be tireless in our drive to maintain Americans’ faith in their institutions of government. Faith in our institutions is critical to maintaining the ability of those institutions to function effectively.
At a time when the president is actively working to undermine the legitimacy of our elections and many Americans doubt the importance of government, we must remain vigilant. I know that for many, myself included, it is nigh-impossible to sit back and watch the Senate confirm Judge Barrett. But that is, unfortunately, the Senate’s role. To engage in the Republican con-game, where with every election our morals change, would be fundamentally immoral. More importantly, it would be catastrophic to the maintenance of an already frail government.
If the past four years have taught us anything, it’s that America is weaker than it once seemed. American institutions are more brittle than we believed. To achieve the brighter future that the late Justice Ruth Bader Ginsburgh toiled for, we cannot put partisanship over protecting our Democracy. We cannot even, unfortunately, put civil liberties over Democracy. Because right now, half the nation has already forsaken our Democracy, and, if the remainder stoops to that low point, Americans’ trust in government will crater, and the American experiment may very well collapse.
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