Below is my column in the Wall Street Journal on the Amy Coney Barrett nomination. While the confirmation hearing often seemed strangely incoherent to the candidate, there were important moments when the views of Judge Barrett’s case law were expressed with striking – and rarely – clarity.
Here is the column:
As a law professor, I have long viewed confirmation hearings with the same contempt 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 make the same random sound of embarrassing senators and evasive candidates.
Until this week. The confirmatory hearing for Judge Amy Coney Barrett had substance and even a recognizable pattern. The candidate expressed herself in a strong and distinctive tone.
Judge Barrett followed the “Ginsburg Rule” by refusing to provide “clues,” “previews,” or “predictions” for future decisions, but was more open than any candidate since Robert Bork in 1987.
It was clear that this would be another confirmation from the start when Judge Barrett answered Senator Chuck Grassley’s first questions. She came out of the gate with this statement: “I interpret the constitution as law. That I interpret his text as text. And I understand it has the meaning it had at the time people ratified it. So this meaning doesn’t change over time and it’s not up to me to update or add to my own policy views. “
Judge Barrett isn’t the first to adopt the label Originalism but she may be the first since Antonin Scalia to really mean it. Even Justice Elena Kagan said, “We are all Originalists“At her verification hearing, but that was because she’d repackaged something Originalism means: “Sometimes they have very specific rules. Sometimes they set broad principles. In both cases we apply what they tried. That is how we are all Originalists. “Chief Justice John Roberts does not identify as Originalist and few consider most of the court to follow this view of constitutional interpretation. Justice Brett Kavanaugh identified himself as Originalist but quoted the testimony of Justice Kagan; few academics see it as a Originalist. In his audit hearing, Judge Neil Gorsuch said he was “happy to be named Originalist, ”But being willing to accept the label can be easier than accepting the teaching.
Judge Barrett is a real, honest God Originalist. At her hearing, she barely left a question to enhance her analysis of the original Provisions of the Constitution and the Bill of Rights would die original Meaning of the words when they were made law. To interpret the meaning of the constitution, she cited debates from the founding years or shortly thereafter rather than centuries of interpretative or social changes. For Judge Barrett, liberality in interpreting some parts of the constitution appears to be limited to a few months in the 18th century. She admitted at one point that there is a legitimate debate about whether you can consider the meaning of a provision at the time it came into effect – for example, December 15, 1791 – or whether you can also consider interpretations from the months before it came into force. That is a lifetime away from a “living constitution”.
Another notable moment of clarity at the hearing related to Roe v. Wade (1973). Judge Barrett did not hide her personal views for life, just as her predecessor Ruth Bader Ginsburg did not hide her views for the election. The two women are strikingly similar. Both have degrees in law. Both made excellent teaching careers. Both began their careers in reproductive rights, albeit from different perspectives.
A moment in the hearing dropped my popcorn. Senator Amy Klobuchar asked Judge Barrett about the precedent, identifying Brown v. Board of Education (1954) as “super precedent.” When Ms. Klobuchar asked if Roe was a precedent, Judge Barrett landed on that line: “I answer a lot of questions about Roe, which I believe suggest Roe doesn’t fall into that category.” That couldn’t be more clear. She didn’t say she was going to overthrow Roe, but that there was nothing inviolable about it; Nothing isolates the judgment from later reassessments of its constitutional basis.
Judge Barrett did not fully embrace the notion of precedent. She described it as a theory put forward by scientists in publications. Many legal scholars question the foundation to explain that more and more cases are taking precedence to protect preferred decisions. It’s a convenient theory. Democratic members have denounced candidates for considering overturning cases like Roe, while next breath called for overthrowing others like Citizens United v Federal Election Commission (2010) for free speech and District of Columbia v Heller (2008) for gun rights.
Judge Barrett was equally clear about the application of international law in US cases. She challenged the use of international law as an authority in shaping the meaning or limitation of the application of US constitutional or legal authority. It sounded a lot like her mentor, Justice Scalia.
Judge Barrett also elaborated on previous opinions – sometimes so much that the Senators seemed to wish they hadn’t asked. For example, Senator Dick Durbin asked why Judge Barrett ruled in a 2019 case that states cannot deprive ex-offenders of the rights of the second amendment without proving they are dangerous, but alleged that ex-offenders were the voting right can be withdrawn. Judge Barrett began to explain that these rights are found in different parts of the Constitution and that the voting rules are left to the states. But Mr. Durbin interrupted them – and thus protected the Senate from getting into a substantive discussion.
Despite these efforts to avoid actually considering the first legal principles, the Senate has a rare sight before it: a candidate who is unabashedly conservative and completely open to her views on the judiciary. The problem is not that the Democrats didn’t know what they’d get in a Justice Amy Coney Barrett. The problem is that she told them exactly what they were going to get.
Mr. Turley holds the Shapiro Chair of Public Interest Law at George Washington University, teaching a course on the Constitution and the Supreme Court.