Moments of Readability Emerge From The Affirmation of Choose Amy Coney Barrett – Thelegaltorts

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Federal Court Rules Against Trump Administration On The “Third-Country Asylum” Rule – JONATHAN TURLEY

Below is my column in the Wall Street Journal on nomination of Amy Coney Barrett. While the confirmation hearing often seemed weirdly disconnected to the nominee, there were important moments where the jurisprudential views of Judge Barrett were expressed with striking — and rare — clarity.

Here is the column:

As a law professor, I have long viewed confirmation hearings with the same disdain as atonal music: they lack any cohesion or satisfaction. “To the uninitiated listener, atonal music can sound like chaotic, random noise,” says “Music for Dummies.” Confirmation hearings produce the same random noise of bloviating senators and evasive nominees.

Until this week. The confirmation hearing for Judge Amy Coney Barrett had substance and even a discernible pattern. The nominee expressed herself in a strong and unmistakable tone.

While following the “Ginsburg Rule” in refusing to give “hints,” “previews” or “forecasts” of future rulings, Judge Barrett was more open than any nominee since Robert Bork in 1987.

It was clear that this would be a different confirmation from the very outset when Judge Barrett answered the first questions from Sen. Chuck Grassley. She came out of the gate with this declaration: “I interpret the Constitution as a law. That I interpret its text as text. And I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time and it isn’t up to me to update or infuse my own policy views into it.”

Judge Barrett is not the first to embrace the label of originalism but she may be the first since Antonin Scalia to truly mean it. Even Justice Elena Kagan said “we are all originalists” at her confirmation hearing, but that was due to her repackaging of what originalism means: “Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they tried to do. In that way, we are all originalists.” Chief Justice John Roberts does not identify himself as an originalist and few view most of the court as following this view of constitutional interpretation. Justice Brett Kavanaugh identified himself as an originalist but cited Justice Kagan’s statement; few academics view him as an originalist. In his confirmation hearing, Justice Neil Gorsuch said that he “was happy to be called an originalist,” but the willingness to embrace the label may be easier than embracing the doctrine.

Judge Barrett is a real, honest-to-God originalist. At her hearing, she left little question that her analysis of the original provisions of the Constitution and the Bill of Rights would turn on the original meaning of the words when they were made law. To interpret the Constitution’s meaning, she cited debate from the founding years or shortly thereafter, rather than centuries of subsequent interpretative or social change. For Judge Barrett, liberality in interpreting some parts of the Constitution is apparently limited to a matter of months in the 18th century. She acknowledged at one point that there is a legitimate range of debate on whether you consider a provision’s meaning on the date of its enactment—say, Dec. 15, 1791—or whether you can also consider interpretations from the months that preceded its enactment. That is lifetime away from a “living Constitution.”

Another notable moment of clarity in the hearing regarded Roe v. Wade (1973). Judge Barrett did not hide her personal pro-life views, just as her predecessor Ruth Bader Ginsburg did not hide her pro-choice views. The two women are strikingly similar. Both graduated at the top of their law classes. Both went on to distinguished teaching careers. Both started their careers writing in the area of procreational rights, albeit from different perspectives.

One moment in the hearing made me drop my popcorn. Sen. Amy Klobuchar was asking Judge Barrett about the hold of precedent, and identified Brown v. Board of Education (1954) as “super-precedent.” When Ms. Klobuchar asked whether Roe is super-precedent, Judge Barrett landed this line: “I’m answering a lot of questions about Roe, which I think indicates that Roe doesn’t fall into that category.” That could not be clearer. She didn’t say that she would overturn Roe, but rather that there is nothing inviolate about it; nothing insulates the ruling from later re-evaluations of its constitutional foundation.

Judge Barrett did not entirely embrace the notion of super-precedent. She described it as a theory put forward by academics in publications. Many legal scholars question the basis for declaring an ever-wider array of cases to be super-precedent as a way to protect favored rulings. It is a convenient theory. Democratic members have denounced nominees for considering overturning cases like Roe while in the next breath demanding they overturn others like Citizens United v. Federal Election Commission (2010), on free speech, and District of Columbia v. Heller (2008), on gun rights.

Judge Barrett was equally clear on the use of international law in U.S. cases. She challenged the use of international law as an authority in shaping the meaning or limiting the application of U.S. constitutional or statutory authority. It sounded very much like her mentor, Justice Scalia.

Judge Barrett also went into considerable detail on prior opinions—sometimes so much that senators seemed to wish they hadn’t asked. For example, Sen. Dick Durbin asked why Judge Barrett ruled in a 2019 case that states cannot strip Second Amendment rights from ex-felons without proof that they are dangerous, but maintained that ex-felons can be stripped of voting rights. Judge Barrett began to explain that these rights are found in different parts of the Constitution and that voting rules are left to the states. But Mr. Durbin cut her off—thereby protecting the Senate from stumbling into a substantive discussion.

Despite such efforts to avoid actual consideration of first principles of law, the Senate has before it a rare sight: a nominee who is unabashedly conservative and entirely open about her jurisprudential views. The problem is not that the Democrats did not learn what they would get in a Justice Amy Coney Barrett. The problem is that she told them precisely what they would get.

Mr. Turley holds the Shapiro Chair of Public Interest Law at George Washington University, where he teaches a course on the Constitution and the Supreme Court.

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