An interesting presentation then Professor Amy Coney Barrett gave at Jacksonville University in November 2016, five days before the elections, begs for further scrutiny now that President Trump has formally nominated her to fill the U.S. Supreme Court seat left vacant after the death of Justice Ruth Bader Ginsburg. In her hour long presentation at Jacksonville University, which reasonable people will agree was highly impressive, Professor Barrett delved into a whole host of issues dealing with the U.S. Supreme Court and its Justices. Of particular relevance today, is the fear Professor Barrett expressed of “a very marked shift” in the Supreme Court to the left, were Hillary Clinton to win the presidency in 2016.(see clip below)
Professor Barrett’s concerns in November 2016 are of particular concern today because the “very marked shift” in the U.S. Supreme Court she feared in 2016 has come to pass. The only difference is that the marked shift in the court has been to the right, with Trump as President. More importantly, the very concerns she had about a future President Clinton replacing Justice Scalia with a liberal, is the exact situation we currently find ourselves in, with President Trump getting ready to replace liberal Justice Ginsburg with her–a staunch conservative. Given her fears in 2016, should Trump have nominated someone more liberal to replace Justice Ginsburg? In other words, is Judge Amy Barrett only worried about the U.S. Supreme Court markedly shifting to the left but okay if the shift is to the right?
Specifically, then Professor Barrett argued in her presentation that whoever won the presidency in 2016, who she assumed like many would be Clinton, would have a chance to replace up to four Supreme Court justices, given their advanced ages. Clinton, she argued, would not only fill the vacant Scalia seat with a reliable liberal, tipping the balance of the court leftward, but would also likely replace Justices Ginsburg, Breyer and Kennedy with much younger reliable liberals, essentially turning the U.S. Supreme Court into a reliably liberal court. Trump on the other hand, Professor Barrett argued, would fill the vacancies with a “mixed bag” of justices resulting in a somewhat center-right court but definitely not a far right Supreme Court.
Reasonable people will agree that with the appointments of Justices Neil Gorsuch and Brett Kavanaugh, President Trump has already shifted the U.S. Supreme Court to the right. Trump’s nomination of conservative Judge Amy Barrett to replace reliably liberal Justice Ginsburg will therefore lead to the very “marked shift” in the U.S. Supreme Court that then Professor Amy Barrett feared with a Clinton presidency. The question Democratic Senators need to confront Judge Barrett with at her confirmation hearings, is whether she is now comfortable with the marked shift in the Supreme Court to the right. Should Trump have nominated a Supreme Court justice more in the mold of Justice Ginsburg to prevent the marked shift to the right?
It bears pointing out however that Professor Barrett espoused an interpretation of the role of judges generally, and supreme court justices in particular, that many legal scholars will find very refreshing. She stated very clearly that the role of a judge is not to placate to the partisan political camps but rather to follow the law, wherever it leads. She illustrated her point with Justice Scalia, who sided with the liberal justices time and time again on criminal law issues even though as a conservative, Republican voters expected him to be a “law and order” judge, always siding with law enforcement in criminal cases. Professor Barrett said Justice Scalia did so not because he liked criminals, but because that was what the text of the constitution required him to do. This should be a warning shot to Trump Republicans who are fast-tracking her confirmation in the hopes that she will rubber stamp GOP policy positions at the Supreme Court.
Bottom line folks, as things currently stand, Judge Amy Coney Barrett’s ascension to the U.S. Supreme Court is all but certain. There’s literally nothing Democrats can do procedurally or otherwise, to stop her confirmation to the high court. One only hopes that during her confirmation hearings, Democratic Senators will confront her with tough questions, among them, her fears in 2016 of a “marked shift” in the composition of the U.S. Supreme Court. Specifically, Democratic Senators should ask Judge Barrett why she feared a marked shift of the high court to the left but is now seemingly comfortable with a marked shift to the right, thanks to her confirmation.
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