I really didn’t mean this is a dare:
Any elite liberal lawyer/law prof who stands up for THIS nomination should be encased in a barrel and tossed into their choice of the Charles or Quinnipiac Rivers— Scott Lemieux (@LemieuxLGM) September 25, 2020
But Noah Feldman gets the Lisa Blatt Carpool trophy for pretending this is all a game in the end:
Yet these political judgments need to be distinguished from a separate question: what to think about Judge Amy Coney Barrett, whom Trump has told associates he plans to nominate. And here I want to be extremely clear. Regardless of what you or I may think of the circumstances of this nomination, Barrett is highly qualified to serve on the Supreme Court.
To make a life-tenured position for what is fundamentally a political position about “qualifications” is already asking the wrong question. This position is not a technical one and the minimum qualifications for doing it are not remotely rare.
Barrett, a textualist who was working for a textualist, Justice Antonin Scalia, had the ability to bring logic and order to disorder and complexity. You can’t be a good textualist without that, since textualism insists that the law can be understood without reference to legislative history or the aims and context of the statute.
Asserting that “textualism” is a grand theory that meaningfully constrained Scalia’s jurisprudence, or would meaningfully constrain Barrett’s, is just flat-out lying to readers. Let me once again cite my favorite example of Justice Scalia’s “textualist” approach, in this case interpreting an amendment that clearly permits states to be sued by their own residents:
Despite the narrowness of its terms, since Hans v. Louisiana, we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty.
Barrett will certainly be a “textualist” in this sense.
But a Republican is president, and the Senate is Republican. Elections have consequences, and so do justices’ decisions about when or whether to retire. Trump is almost certainly going to get his pick confirmed.
Nope, sorry, you can’t throw shade on RBG’s decision not to retire strategically in the context of an article that treats choosing and confirming Supreme Court justices like hiring an associate at Omaha’s largest tax law firm.
To add to her merits, Barrett is a sincere, lovely person. I never heard her utter a word that wasn’t thoughtful and kind — including in the heat of real disagreement about important subjects. She will be an ideal colleague. I don’t really believe in “judicial temperament,” because some of the greatest justices were irascible, difficult and mercurial. But if you do believe in an ideal judicial temperament of calm and decorum, rest assured that Barrett has it.
Look, nobody cares. This is a life-tenured position with literally life-or-death powers. Who gives a shit if the person about to allow states to force 13-year-old girls to bear their rapist’s children and very possibly take healthcare away from tens of millions of people is a “nice person.” It’s irrelevant to anything. I’m not interested in how she will treat her colleagues or the star students you hope to land in her chambers.
It would be naïve to deny that there is plenty of politics in constitutional interpretation. There are winners and losers every time the justices take a stance on an important issue of law. Nevertheless, the institutional purpose of the Supreme Court is to find a resolution of political conflicts through reason, interpretation, argument and vote-casting, not pure power politics. It follows that the social purpose of the Supreme Court is best served when justices on all sides of the issues make the strongest possible arguments, and do so in a way that facilitates debate and conversation.
I…can’t even. The Supreme Court is not a debating society. In the last two decades it has rendered the most important civil rights statute since Reconstruction as a dead letter, attacked unions with specious First Amendment arguments, made it impossible to meaningfully regulate campaign finance, relentlessly favored business over employees and consumers, etc. etc. etc. But this is what happens when you’re insulated from the material consequences of Supreme Court decisions and need to give your professional life a higher meaning.
Anyway, just don’t do this. A minority faction is installing itself on the Supreme Court, and the consequences will be awful. That’s all that matters.