I am a practicing lawyer focused on criminal defense and first amendment law. When I awoke this morning, I did so without any apprehension whatsoever that there had been a coup in the United States Supreme Court. Yes, the timing of Justice Amy Coney Barrett’s nomination and appointment were controversial politically, but what isn’t these days?
There was a vacancy. The president nominated a successor to fill it. The president’s party controlled the Senate, the body necessary to confirm Justice Barrett. Barrett was rammed through the process with the grace of meatpacking operation.
It wasn’t pretty. But it was politics by the rules. The president nominated a justice. The Senate held hearings. The nominee was approved. Her nomination was moved to the floor of the Senate. The merits of the nomination were debated under Senate rules. There was a vote. She was sworn in. That the Democrats boycotted the proceedings made it all appear somehow illicit. But it wasn’t.
New flash: the process worked.
Was it hypocritical as Hell, given the Senate’s treatment of President Obama’s nomination of Merrick Garland? You bet it was. But President Obama’s party did not have the votes to advance the nomination, and the nomination therefore failed. The process worked then, too.
Thus is has been throughout the history of the Republic.
Justice Barrett is the 115th person in our nation’s history to become a Supreme Justice. She is the 30thperson to be considered for a seat on the Court in the last year of a president’s term.
In other words, in 29 previous cases, a Supreme Court vacancy occurred during the last year of a president's term. A nominee was tendered each time. When the Senate was the same party as the president, the nominee was confirmed 17 of 19 times. When the Senate and president were in different parties, the nominee was confirmed only twice.
This making of Justice Amy Coney Barret was politics as usual.
Just how she will vote on the various cases and controversies that will find their way to the Court is unknown. Folks predicting doom and gloom because she is the third justice to be appointed to the Court by President Trump overstate their fears. No one foresaw that Dwight Eisenhower's appointment of Chief Justice Earl Warren would usher in an era of liberal activism. (H/t to George Ferko for correction as to president who appointed Warren) Yet, it did.
Our office will this week file a petition in the Supreme Court seeking a stay of activity in a civil case involving our client, Alex Jones, the owner of Infowars. I haven’t spent a nanosecond worrying about the composition of the Court as we prepared the filing. Cases are decided based on the law. Justices strive to decide cases that way. There are no partisan hacks on the Court – that’s the point of a lifetime appointment.
I used to enjoy appearing in the United States Court of Appeals for the Second Circuit in New York back when Sonya Sotomayor, now a Justice on the United States Supreme Court, was a mere appellate court judge. She was fiery, unpredictable, smart and tenacious. I’d argued in front of her at least a dozen times. Not once did I know her politics. Never did I care about them. It wasn’t until she was appointed to the Supreme Court that I heard folks talk about her political views, and most of what was said was nonsense.
Law isn’t politics, despite what the critical legal theorists say.
The storm and stress about the Barrett elevation to the Supreme Court is a sad testament to our times. The Senate did no one any favors in the way this was handled. The naked partisanship was to be expected – to the winners go the spoils. But the near hysterical reaction to the nomination damages the republic. I’ll never forget the triumphant tone of Senator Kamala Harris as she questioned Justice Barrett on global warming – it was ridiculous political theater; justices aren’t policymakers. And Senator Blumenthal’s hyperventilating about Barrett leaves me cold and disaffected. So, too, does the entire process.
Today, tomorrow and for so long as I am able, I will represent clients with legal difficulties. My job is to discern their interests, advise them on the law as I understand it, and then advocate within the confines of the law for what my client’s want. I simply don’t stop to think about the umpires calling balls and strikes.
I don’t know how Justice Barrett will vote on the Affordable Care Act or on other cases. I suspect she doesn’t. She has views on what the Constitution permits; she should, that’s her job. We all have, or should have, views on what role government should play in our lives. That’s what makes us citizens of a republic.
There was no coup last night. Pretending otherwise diminishes us all.
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