Amy Coney Barrett And The Supreme Court.
By Erica and Karen
The process by which Amy Coney Barrett is being rushed onto the Supreme Court seems to us an inappropriate way to fill a position that gives great power to affect the lives of American citizens, and carries with it lifetime tenure.
Should she be considered at all?
Yes, of course she should.
Let us first dispose of her qualifications. She is plainly well qualified, as an academic matter. She is smart, and learned. She has acquitted herself efficiently in her confirmation hearing—well prepared, with quick responses to every question. She has not answered any question that might indicate how she might rule, sometimes appropriately, in our view, and sometimes less so. She has a sense of humor, and she likes color in her clothes, which we appreciate. And, unlike some recent appointees, she has plenty of children, who surely provide perspective to her life.
But her broader qualifications are perhaps slim, as Linda Greenhouse has pointed out, and raise the question whether the country is best served by appointing to the Supreme Court a person whose experience is rather removed from the scrum of daily life.
Our main concern is that she identifies as an originalist, and she is to replace a justice whose approach was quite different.
We understand Judge Barrett to mean, by adopting originalism, that she, like her mentor Antonin Scalia, intends to interpret our Constitution and laws as they are written. Well, of course. But interpretation obviously requires more than just looking at the words. Over the years, legal scholars have articulated many ways of doing that. Originalists want to get into the heads of the people who wrote the words, to see what they saw at the time. Jurists like Ruth Bader Ginsburg see the words as giving us a guide to the realities of today’s world. The meaning of the words must still be ascertained but the facts may inform their application.
We write not as Constitutional scholars, but as citizens. We cannot believe that the principles animating the Constitution are to be confined to the factual context of a time when the polity was small, and narrow.
After eliminating everyone under the age of 21, all slaves and women, most Jews and Catholics, plus those men too poor to be freeholders, the colonial electorate consisted of perhaps only 10 percent to 20 percent of the total population.
The men who wrote the Constitution, and the men who were entitled to vote at that time, were likely not thinking about rights for women, or Black people, or members of the LGBTQ community. But we do not understand that they wrote the glorious document that is the Constitution to enshrine in stone only the legal rights relevant two hundred years ago. That would have been be a circumscribed exercise, not the grand undertaking we understand the Constitution to represent.
Ruth Bader Ginsberg believed that the Constitution was a living document and Antonin Scalia believed it was dead. On this debate, we go with the living.