So, I have been watching the entire nomination process from the start. At the least, it is a great way to see a good debate between different “parties” where some decorum has been maintained so far.
It is clear that purely from a “knowledge about law” perspective, it is hard for Democrats to block the nomination effectively. The judge is clearly smart, knowledgeable & cold as ice with respect to anything which the Democrats have brought up.
She needs to follow the “process of law”, for everything from whether the president can decline to accept the results of the election, to whether he can pardon himself. All of which should be no brainers.
Can a cold machine with perfect knowledge of the law be the only qualification to occupy a Supreme Court seat?
Argument 1: Knowledge is the only prerequisite
Is a knowledge of law the only prerequisite? That is the approach Democrats need to take to bring this nomination down like a house of cards.
Using the spectre of losing the Affordable Care Act is not going to do anything to prevent the GOP from confirming the judge. It can stir up the base, for sure — but that does not do much to really block the nomination.
After hearing Sen. Cory Booker questioning today (Oct 14, 2020), I finally see an effective path, to legally block the nomination process in an effective manner.
How can a judge born with a silver spoon in her mouth effectively understand the repercussions of her rulings in the Supreme Court?
Some people have mentioned that just because you were born privileged and wealthy, does not mean that you don’t have any empathy and you can’t understand. That is true, FDR is a great example of someone who was born to privilege but had the most empathy you could find. But, in all such cases you will notice that they made an effort to understand the world around them and/ or had someone like Eleanor Roosevelt who traveled the country and read the pulse of the people.
Even Gandhi was not born poor. If you read his book, you will know he had to spend an entire year traveling around India in trains to understand the pulse of the country.
Clearly, from the nomination process, this judge has no idea about the realities out there.
Argument 2: If you don’t know the conditions out there, you cannot be a good Supreme Court Judge
Can you really be a good Supreme Court judge when you have no idea of the consequences of a certain vote?
Do you think RBG was great merely because she understood the law better?
I would say she was a great judge because she knew the reality on the ground. She knew the consequences of a vote in either direction. She knew that because she had experience in real life, with all sorts of discrimination. And, she was clearly well read enough to know how voting has been artificially depressed in the country for minorities.
Judge Barrett has mentioned that understanding the effects of a ruling is part of the decision making process. When Senator Booker mentioned about racism today during his questioning, she clearly had no idea about the reality on the ground.
In fact, there are lot of things mentioned by Democrats, which she has no idea about. A good line of questioning is merely to ask her if she knows:
- Anyone who has encountered racism?
- Anyone who has been denied medical insurance?
- Anyone who has a blue collar job?
- Anyone who is LGBTQ?
- Anyone who has waited for 4 hours to cast their vote?
- Anyone who has died of COVID?
- Anyone who has needed to have an abortion?
- Anyone who has… and the questions can go on & on…
If she does not have a wide enough experience (yet) to know such people or read about problems faced in different areas which have come to the courts, then she cannot be an effective supreme court judge.
To me, that is a clear reason to sink the nomination. I think any judge confirmed to the supreme court should have a good knowledge about current affairs in the country.
If someone has never seen hardships, always had money — it is easy for them to be “textual” or “originalist” and interpret laws “as they were intended”, because they would not know the consequences of doing so. They can just shirk their responsibility and say “I’m sorry, the law does not say X or Y”, so let us go ahead and:
- Separate kids from parents on the border.
- Make women second class citizens by taking away their control over their own bodies.
During the Nuremberg Trials, note that all the prisoners argued that they were merely “following orders”. Clearly, doing something without regard to consequences merely based on an edict said or written has horrific consequences.
Argument 3: Originalism has its own serious flaws
The question also becomes whether judges should be historians? They are not — hence originalism is clearly a flawed theory because ultimately, it is impossible to know for sure the true intention and meaning of text written several hundred years ago.
In the originalist’s world, if the fifteenth amendment was not ratified yet, black people could not vote. And apparently, women don’t yet have the same rights as men even today:
In 2019, women's rights are still not explicitly recognized in US Constitution
Over nine decades, efforts to amend the U.S. Constitution to recognize women's rights have faced major challenges.…
So, this is not yet in the US Constitution. So, how would the judge rule on a case like this? Clearly women don’t have the same rights as men.
This is how we get to the state where we cannot unilaterally condemn parental separation at the border or keeping kids in cages.
If you need to “follow the process of law”, to be able to determine whether separating kids from parents is legal or not — clearly, you do not have the wisdom or experience to be a Supreme Court judge.
Democrats should go “full originalist”, and make a list of every single negative extrapolation which can be made on the basis of that theory, and #AskAmy about it:
- As women have no equal rights because the ERA was never ratified, based on originalist philosophy, that means X, Y & Z. Then #AskAmy whether she agrees to each conclusion, and why?
- As women have no equal rights because the ERA was never ratified, #AskAmy how she would approach scenario X, Y & Z?
Argument 4: I don’t think she considers unenumerated rights to be real rights.
Unenumerated rights are legal rights inferred from other rights that are implied by existing laws, such as in written…
“The Supreme Court has found that unenumerated rights include such important rights as the right to travel, the right to vote, and the right to keep personal matters private.”
#AskAmy how the unenumerated right to vote influences her judgement on voting related cases.
A look at Judge Amy Coney Barrett's notable opinions, votes
Judge Amy Coney Barrett, President Donald Trump's nominee for the Supreme Court, has written roughly 100 opinions in…
The only pattern I can make out from the hearing so far, is that no matter how egregious the scenario is, she needs to “follow the process of law” for anything which is not explicitly specified in the Constitution.
Opinion | What About the Rest of the Constitution?
Amy Coney Barrett's originalism ignores the significance of the second American Revolution. On Tuesday, Judge Amy Coney…
This NY Times article has similar thoughts to what I have mentioned here. The one difference though is that I don’t think that we need to consider later constitutional work as something different. The original constitution never says black people don’t have rights, or women don’t have rights. It says everyone has rights. That is the beauty of it — and I think this was deliberate to some extent, and hence interpretable for future generations.
Think about it, if the founding fathers really did not want black people or women to have their freedom “explicitly”, they would have written it down as such. “Only white people have freedom guaranteed by the Constitution”. They did not do that. I know many of them were slave owners — yet, they never say such and such do not have rights, or cannot vote. This is essentially the reason, the whole world loves the US Constitution and why it is great.
Argument 5: It seems like she will be dealing with most consequential issues which really matter, for the first time on the Supreme Court
No matter what job you have, with experience, you learn that you always start with flawed, non-optimal approaches. The more experience you have dealing with certain scenarios, the better you get at dealing with them.
As an example, if you have had to deal with issues like the Affordable Care Act many times, each time you deal with it again, your mental processes would get better, and the last time you had to look at the points, your approach would be better.
From the questions answered during the nomination process, it is clear that Judge Barrett has not encountered many scenarios yet. This is clear because the Democrats could not find much about her judicial philosophy beyond certain specific areas looking at her past cases.
So, if Judge Barrett is going to encounter some very serious issues for the very first time after joining the Supreme Court, her lack of experience compounded by the fact that clearly, she does not know the ground realities out there, will ensure that she makes flawed decisions which will negatively impact a significant number of the population.
This is why, towards the end of her dissent in Shelby County v. Holder, Justice Ginsburg suggested a simple analogy to illustrate why the regional protections of the Voting Rights Act (VRA) were still necessary. She wrote that:
“[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”
Let me again note that RBG was great because she had worked for the ACLU before. She clearly understood the ground realities in the real world better than an originalist like Justice Scalia, which was his biggest flaw. If you do not know ground realities, you can sit in your ivory tower like Justice Scalia, and “eat cake”, while your rulings have a major impact on millions of people out there.
If 20 million people lose their medical insurance because of a judgement, and you have no idea about the difficulties faced by real people out there, then you can’t be a good judge. It is not justice if your judgement results in thousands of people dying because of lack of medical coverage.
Her Life is Her Story: See RBG’s confirmation process to figure out how to approach this one
I truly feel that Democrats could have done better than they did during the current confirmation process. They should have split between talking about the Affordable Care Act, while also putting forward serious challenges to the current nominee based on the law.
These are the weaknesses I have found during the testimony so far, and the Democrats should use this argument and extrapolate it.