As you might expect from someone who hails from England, I feel no personal loyalty towards either Republicans or Democrats. I care far more about the principles which unite us: principles which underpin the functioning of society and the nature of our respective justice systems.
Let’s put aside, for one moment, what we believe about political issues. In the United Kingdom, I strongly oppose the politicization of our judiciary. They should be strongly, fiercely independent – ruling, to borrow a phrase from elsewhere, without fear or favour. Their role is not to make the law, nor is it the gradual erosion of decisions they find unpalatable through judicial activism, but it is to interpret that law in a fair, equitable and even-handed manner. A judge’s personal political views should be irrelevant, discarded at the courtroom door.
I cherish that independence. Moving from the law to Parliament very briefly, it’s why I (as someone from the Right by British standards) hold a positive opinion of supposedly Left-wing ex-Labour Speakers of the House of Commons such as Betty Boothroyd and now Sir Lindsay Hoyle. They put their personal politics to one side and rule impartially over the chamber. It’s also why I disliked ex-Conservative John Bercow, because I believe he failed to uphold precedent.
One of my best friends is a Miami Dolphins fan, so I’d tend to cheer for them against the New England Patriots. Okay, I’d probably cheer for any team against Belichick’s side, but I would still not want the umpires to wear a Dolphins jersey any more than a Pats one. Inscrutable impartiality is their role, and it’s the role of the league – not the on-field officials – to amend the rules of the game. Officials officiate (there’s a clue in the name). They remain faithful to the rules (in English football, or “soccer” as it’s described here, the rules are officially described with the grand-sounding title “Laws of the Game”).
If my analogy sounds a little underwhelming to you, that’s precisely the point! We wouldn’t even begin to consider partisan activist referees and umpires altering the rules to be remotely acceptable, so why – when we speak of matters many orders of magnitude more important – is such activism considered by many to be reasonable when it comes to the Supreme Court?
I do recognize and understand that my system, and the American system, are different. Nominations to the U.S. Supreme Court are not inherently apolitical. Whether the framers of the U.S. Constitution intended this to be the case is another matter: they could hardly have anticipated the pervasive power of twenty-first-century political parties.
The facts in this situation are simple. The President of the United States has nominated a judge to serve on the Supreme Court; that nomination is confirmed (or otherwise) by the U.S. Senate.
Is Amy Coney Barrett qualified for the role? Eminently. This must be without a shadow of doubt.
Does she (in general – putting aside the fact that this is an election year in America) command cross-party respect? Clearly, she does: in 2017, several Democratic Senators supported her for the Federal Appeals Court. The story of the level of support she received from her colleagues, both Left and Right, at Notre Dame Law School, is a testament to that.
Does Amy Coney Barrett have the personal character and conduct fitting for a senior judge? Clearly so: her past is exemplary, and her family life (including adoptions of children from Haiti) demonstrates someone with extreme compassion for her fellow human beings.
Has she indicated through her previous decisions a deep understanding of the U.S. Supreme Court? Indeed so: she has a track record of (on a lower court) being a dissenting minority voice – only to be proven correct when the Supreme Court strikes down the ruling.
Leaving aside the “election year” question, and leaving aside the issue of Roe v Wade, there is absolutely no question that Amy Coney Barrett is suitable for confirmation for the Supreme Court. The Senate’s role is not to choose its preferred candidate, but to act as a check and balance – is the President’s nominee suitable? The arguments against Amy Coney Barrett being confirmed are essentially twofold:
- When Barack Obama nominated Merrick Garland to the Supreme Court, Republicans blocked the nomination
Hypocrisy abounds – both sides’ Senate positions have flipped since 2016, coinciding unsurprisingly with their political interest. The Democrats can tentatively argue we’re closer to the election this time; Republicans note that unlike 2016, the Senate is now controlled by the President’s Party.
Ultimately, though, the Obama/Garland argument is weak for a different reason. It’s irrelevant to the fundamental question. The President nominated a candidate: is she suitable for the role?
- Amy Coney Barrett might overturn Roe v Wade
I’m not sure that it’s reasonable to be asking questions about a specific piece of case law: that implies an inverted approach. It’s nonsensical to consider a nominee’s judicial philosophy on the basis of how that might (or might not) affect a specific case: either the philosophy sound, or it is not. A good philosophy doesn’t become bad simply because you happen to disagree with a single consequence of it. Amy Coney Barrett’s judicial approach towards precedent is explained clearly in her paper “Precedent and Jurisprudential Disagreement”. (I suspect cite note 21, where she references Scalia as a self-defined “faint-hearted originalist”, provides a window into Barrett’s philosophy)
Faithfulness to the Constitution is important. If you don’t like the Constitution, then there exists a recourse in law to change it. Of course, it’s difficult to amend because a Constitution is designed to be a long-term governing document rather than something to be changed on a whim. The facility is there, but in that case, it’s necessary to persuade the nation rather than ask judges to re-interpret words until they no longer mean what they actually say.
As Amy Coney Barrett’s nomination will undoubtedly come under unprecedented attack, there’s a real temptation to respond in kind – particularly on such an emotive issue as the rights of the unborn child. Many people will try to argue Roe v Wade in the court of public opinion. I’m not certain that’s the right approach. The appointment of a Supreme Court judge is about something bigger: it is a question of fundamental respect for the Constitution, for the very fabric of the nation.
Written for Madison Liberty by UK former MEP, Jonathan Arnott.
