One Man’s Opinion: Confirmation Obfuscation

Judge Amy Coney Barrett, a member of the 7th District Court of Appeals, is our 163th nominee to serve as Associate Justice on the U.S. Supreme Court since 1789.  She is only the fifth woman to be nominated.  She is the second female nominated by a GOP President, there have been three female Associate Justices nominated by Democrats.

There have been 29 nominations which took place during a Presidential election year.  In 19 of those cases, the political party controlling the White House was the same as the Senate Majority.  In 10 of those cases, the opposite was true.  When the Senate and White House were from the same party, 17 justices were confirmed, when they were in opposition, only 1 of those 10 designees was confirmed.  Only 17 nominees to the court have been rejected since 1789.

Justice Brett Kavanaugh was confirmed by a vote of 50 to 48 in 2018.  Justice Clarence Thomas was confirmed by a vote of 52-48 in 1991.  Associate Justice Kavanaugh is the newest member, and Justice Thomas currently its longest serving.  Then Senator Joe Biden, a Democrat, presided over the Senate Judiciary Committee Hearings for Thomas, nominated by President George H.W. Bush.  Senator Charles Grassley, a Republican, chaired the Senate Judiciary Committee hearings of Kavanaugh, nominated by President Donald Trump. Those bookends presenting the court, partisan splits and close votes are non-remarkable, as there have also been landslide confirmations.

In 1993, Justice Ruth Bader Ginsburg was confirmed by a vote of 96-3, the second woman nominated to serve, by President Bill Clinton during his first year in office, and Supreme Court confirmation hearings were again chaired by Senator Joe Biden.  Only 3 Republicans voted against Ginsburg, despite her well established credentials as an advocate and legal expert on progressive causes and ending all discrimination based upon gender.  Ginsburg was confirmed in 45 days.

Here are some important things to know, if you don’t have days or hours to devote to these hearings.  Amy Coney Barrett is a native of Louisana, she attended Rhodes College in Memphis, TN.  She went on from Rhodes to law school at Notre Dame in Indiana on a full scholarship.  IF confirmed, she will be the only justice on the current court not to have attended Yale or Harvard law school.  By the age of 30, Notre Dame had hired Barrett as a member of their law school faculty.  While concurrently serving on the 7th District U.S. Court of Appeals, she remains on the Notre Dame faculty to this day.

Since her nomination, Barrett has commented and joked that she is used to being in a group of nine...her family, she is the mother of seven young children, “While I am a judge, I’m better known back home (in Indiana) as a room parent, carpool driver and birthday party planner.”

Critics of Barrett point to some of her more conservative writings in academic journals, and remarks made in speeches to groups like the Federalist Society.  Similar criticisms were initially lobbed at Chief Justice John Roberts, whose earlier writings on the bench and as legal counsel in the Bush White House would not exactly bely some of his later decisions made while on the court, or several decisions which formed the majority opinion, occasionally siding with court progressives.

In 1992, Ruth Bader Ginsburg gave a lecture, just prior to joining the court.  She believed that the broad authority and decision making granted by Roe v. Wade was flawed.  She said that a narrower and more prescriptive decision would have likely sooner opened up dialogues on this subject in legislatures across the country, many of whom were already moving towards liberalization of abortion access at that time.  In RBG’s words, “Roe halted a political process that was heading in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue.”

It has long been a Democratic Party talking point that given control of the U.S. Senate, White House and Congress, that what we know as Roe v. Wade would be codified into federal law.  Back to facts, American voters gave just that to President Barack Obama in 2008, and though the Democratic majority in Congress did pass the Affordable Care Act (by seven votes in the U.S. House and one vote in the U.S. Senate), before losing majority in the 2010 mid-term elections, there was not a single bill introduced or passed by Congress to establish a federal standard for allowing safe and legal abortions.  Hmmm...probably just got lost in the mail.

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