Virginia Armstrong, Ph.D., National Chairman, Eagle Forum’s Court Watch
President, Blackstone Institute
September 23, 2020
Winston Churchill once said, “a nation that forgets its past has no future.” The departure of Ruth Bader Ginsburg from the U.S. Supreme Court has brought America to an unprecedented crossroads where we are forced to look both backward and forwards at our national crisis in order to determine the disposition of the now-vacant seat on the Supreme Court. In this brief initial analysis, we approach our national crossroads from three perspectives.
(1) Court Composition: The current Court is perceived by many observers as leaning strongly conservative. I respectfully dissent. Chief Justice Roberts is not a conservative and was not before he joined the Court. Justice Kavanaugh had an unclear pre-Court record and remains somewhat unpredictable. Justice Gorsuch was the best hope for true constitutionalist principles, a hope his Court record has sadly not supported.
Therefore, I submit that the current court consists of two conservatives (Thomas and Alito), three swing votes (Roberts, Kavanaugh, and Gorsuch), and three liberals (Breyer, Sotomayor, and Kagan). Thus, Ginsburg’s replacement is essential to moving the Court forward to a true constitutionalist position; but this one appointment alone will fall short of creating a solid constitutionalist Court
(2) Course of the Nomination Process: Constitutionalist forces’ plan of choice is a straightforward one – nomination by the President and ratification by the Senate before the November elections. A most persuasive case for this path is made by the Conservative Action Project in their just-released Memo. But in a Senate where the GOP has a slight 53-47 edge, “moderate” Senators such as Susan Collins and Lisa Murkowski pose a threat to the “simple plan” because they have already refused to support a nomination vote before the election. Two more GOP defectors would prevent the nomination from going before the Senate.
If this were to happen, there is an alternative plan, proposed by Andrew McCarthy in the September 19 issue of the National Review. Under this alternative, Trump would proceed speedily to name a nominee, and massive pressure would be exerted on Joe Biden to reveal to all of us whom he would nominate if elected in November. This could pacify defecting GOP Senators and make Court nominations a much more open and just process where the voters could really see for the first time in history and evaluate potential Justices before they are seated on the Court. Then, under this plan, as soon as the election is over, the Senate should proceed to vote in the Trump nominee, since the Presidency and Senate both continue to hold office after the election. Of course, if Trump were to lose the election, there would be judicial chaos – but also chaos in general.
Finally, in the latest-breaking development concerning procedures, conservative icon and media figure Rush Limbaugh has suggested an idea already spreading – that the GOP leadership simply bypass the Judiciary Committee and go straight to a floor vote. This is clearly constitutional and could be the simplest and most efficient method of proceeding. Indeed, it is valid to question that when a nominee is as well known to Senators as Judge Barrett already is, is there really any significant benefit to subjecting both the candidate and the country to the disgraceful and dehumanizing donnybrook that would surely replace the “hearing “conducted now by the body that once was one of the world’s most respected and distinguished deliberative bodies?
(3) Candidate of Choice: Since the beginning of the Trump Presidency, constitutionalists have championed the nomination to the Court of Judge Amy Coney Barrett (7th Circuit Court of Appeals). Focusing only on her professional/scholarly accomplishments, Judge Barrett’s qualifications are impeccable regardless of the criteria employed: personal, professional/judicial, philosophical, and/or political. A Louisiana native, she graduated Phi Beta Kappa and magna cum laude from Rhodes College, after which she enrolled in the Notre Dame Law School. (All current members of the Court hail from either the Harvard or Yale Law schools – Barrett would be a refreshing change.)
A stellar student with a full-tuition scholarship, she was executive editor of the prestigious Notre Dame Law Review and graduated first in her law school class, with a J.D. summa cum laude. Her Notre Dame colleagues strongly supported her subsequent appointment as a law clerk to two superb, landmark federal judges – Laurence Silberman (D.C. Circuit Court Senior Judge) and Antonin Scalia (U.S. Supreme Court).
After a brief stint practicing law, she returned to Notre Dame as a law professor, where she held the Miller Research Chair of Law, was named “Distinguished Professor of the Year” three times, and penned a number of articles in prestigious national law reviews. Constitutional law, originalism, and legal interpretation – topics of the most vital importance to Court Justices – were her specialization.
During her confirmation hearings to the 7th Circuit Court in 2017, she was sharply criticized by Sens. Dianne Feinstein and Dick Durbin for her Catholic faith. (What an irony since Sen. Durbin and five current justices are Catholic; and the newest justice, Kavanaugh, faced no trouble with the Committee because of his Catholicism, despite the dramatically contentious nature of his hearing). This unconstitutional and untenable attack she weathered with grace and professionalism, demonstrating her ability to handle abrasive Senate Judiciary Committee members, whom she would obviously face in a Court nomination proceeding. The ultimate conclusion? In any group of current potential nominees, Judge Amy Coney Barrett stands as “the Supreme Choice for the Supreme Court.”