Judge Barrett: A fair judgement?

For the third time during his presidency, President Trump has managed to appoint a justice to the U.S. Supreme Court. And, thankfully, the approval process didn’t bring with it another media fiasco as we saw with Justice Brett Kavanaugh’s appointment. Yet there was a regretfully partisan divide among the senators in the confirmation hearings over concerns about specific cases, Barrett’s faith, her judicial philosophy and even her general demeanor.

With as much airing out as is done in these hearings, I think it would be beneficial to do a bit of retrospection on Barrett’s confirmation – how she responded and the questions that were brought up. What’s more, I wouldn’t like to either praise or condemn her here; rather, I would like to make some observations.

I agree, Barrett did come off as sort of rigid and unyielding. But when your job demands complete impartiality and reason-based decision making, then it stands to reason that the individual occupying the position would be dispassionate. Like their black robes symbolize, judges are not supposed to display personality in their work. The principle behind this is to represent judges as united in vetting cases in terms of how laws have been applied and whether they are constitutional. They are not policy-makers, and any person who either states or implies that they are a judicial activist isn’t truly committed to the job or to the will of the people – their will as expressed in the laws their representatives pass into law on behalf of their constituents. Legislators create the law, and judges interpret the law for its constitutionality and its fairness.

I think people need to ask themselves if what they’re demanding of judges is fair or even proper. If, for example, you want a judge to rule in a case in favor of the party who’s seeking something for which neither precedent nor federal statute supports their claim, then trying to persuade the judge to rule in their favor on a strictly moral basis wouldn’t be consistent with the judge’s task. Instead, lobby your representatives in Congress to pass legislation that would allow a judge to lawfully rule in that person’s favor in those kinds of cases.

I despise double standards, and I noticed it in a couple instances during the hearings.

First, most senators were quick to point out that Barrett would be filling the seat vacated by Justice Ruth Bader Ginsburg. Many of the Democratic senators digressed on Ginsberg’s legacy, and some of them very clearly intimated that Barrett would be a poor replacement. Barrett would often decline to comment on certain issues and cases because they could be involved in cases that could come before the court, which is in compliance with ethics guidelines. Ginsberg herself gave a well-known elaboration on why judges should decline: “It would be wrong for me to say or preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.” If a judge commits to a certain policy position, then they admit that they may be swayed by something more than just the merits of the cases over which they may preside.

Second, I’d like to add a word to the recusal question that was put to Barrett more than once. Doesn’t it seem like a contradiction in terms to suggest that Barrett should recuse herself from a case in which there’s, for instance, a question about religion, especially Catholicism, but that she wouldn’t have to recuse herself from a case involving a question about abortion if she were an open supporter of Roe v. Wade and of reproductive freedom? Hypothetically, you couldn’t deny her impartiality in the former instance and forgive it in the latter simply because you believe Roe v. Wade to be immutable. That’s hypocritical. As Barrett pointed out, Roe v. Wade isn’t considered super precedent, which means that it doesn’t belong to a class of cases, such as Brown v. Board of Education, that aren’t ever anticipated to come before the court. Whether you believe Roe v. Wade should not be overturned has no bearing on the specific issues of a particular case that could come before the Supreme Court; and therefore, it has no bearing on a judge’s decision-making process.