The Senate should evoke RBG in its confirmation of Amy Coney Barrett

This week the Senate Judiciary Committee is comparing notes on Amy Coney Barrett in advance of a committee vote to send her Supreme Court nomination to the full Senate. Assuming no surprise witnesses, the full Senate should approve Judge Barrett handily — say, 96-3. That lopsided approval is what the Senate gave Ruth Bader Ginsburg in 1993, and Judge Barrett’s record and testimony merit a similar result.

Of course, that is highly unlikely to happen.

RBG, as Justice Ginsburg was affectionately known, avoided confirmation difficulty by refusing to opine on hypothetical cases without careful study of oral and written arguments by the contending sides with a genuine stake in the outcome. Likewise, she gave no hints or previews on already decided cases and how they might or might not apply to a pending matter. In evaluating her promotion to the high court by President Clinton in the early 1990s, the Washington Post noted that Ginsburg’s confirmation was “one of the most harmonious court confirmations in recent history.” 

Barrett followed the Ginsburg model flawlessly, and so far it has yielded similar harmony, despite some contentious questioning. While Ginsburg’s gender trail-blazing life always will be celebrated as the ceiling breaker, the RBG I knew from my days in D.C. as head of the Office of Legal Counsel for President Reagan, and later as a law school dean, convinces me that — differing political preferences aside — Ginsburg would celebrate the achievements of Barrett in practice, academia, on the bench, and especially her family.  

I was privileged to teach Amy Coney Barrett in her first year of law school at Notre Dame. Then, as now, she displayed determination and intellectual preparation over many areas of law. I recall during one discussion about the rule against perpetuities in a property law class, when many students wanted to avoid participation, her hand popped up and she deftly answered a battery of textbook applications before suggesting, respectfully, how the casebook author missed an aspect of the problem. Students everywhere delight in besting the teacher, but her discernment was so unpretentious, persuasive and clear that it drew admiration from the entire class.  

The Constitution provides for the president to nominate and, following Senate confirmation, to appoint the justices of the Supreme Court. The Senate inquiry was intended to ensure professional competence, impartiality and integrity. As Alexander Hamilton explained in Federalist 76: “It would be an excellent check upon the spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to Popularity.”

Understanding what the Senate role was intended to be also discloses what that role is not — namely, the conferral of lawmaking power on the judiciary. The Framers understood that liberty could not be preserved unless judges were barred from legislating. As Hamilton wrote in Federalist 78, quoting Montesquieu’s “The Spirit of Laws” directly: “There is no liberty if the power of judging be not separated from the legislative and executive powers.” And that is not just an admonition to judges to observe the boundaries of their intended role. Liberty also can be lost if judgment is given over to the executive. So, too, the separation of powers is eroded if prospective judges are pushed to be lawmakers by the pressures of politicized confirmation.

Amy Coney Barrett, with her principled commitment to constitutional structure and her calm, deliberative temperament, fully resisted the pressures of politicized confirmation. Repeatedly, she reminded the Senate committee that it is the Congress’s job to fashion a health care system that observes the boundaries of constitutional power, including abundant precedent on severability. Judges lack the power to disregard the law or constitutional structure for a favored policy. 

Nevertheless, despite the harmonious confirmations of Justices Antonin Scalia and Ginsburg in 1986 and 1993, respectively, there has been an apparent collapse of legal judgment and politics. The end result: the divisive and embarrassing disregard of the intended scope of the senatorial confirmation function, as evidenced in particular by confirmation hearings for Justices Clarence Thomas (1991) and Brett Kavanaugh (2018). The politicization largely began in 1986 and 1987 when then-Sen. Joe Biden chaired the Judiciary Committee. Biden orchestrated the rejection of President Reagan’s nominee, Judge Robert Bork, in 1987, because of Bork’s policy differences with the then-Democratic-controlled Senate. Unfortunately, Bork aided this by commenting on the wisdom or sufficiency of statutes or decided cases, gratuitously approving of some privacy precedents but not others. In this, Bork was as wrong as Biden.  

Family is an important measure of demeanor and temperament. Like the Barretts, RBG and her husband, Marty, met in the later years of their schooling. The story of the Ginsburgs’ 56-year marriage is reasonably well known, thanks to recent movies about the late justice’s life, but I saw it firsthand. Some years ago, Ginsburg and I — along with Chief Justice John Roberts and Justice Stephen Breyer — met in Brussels for an international law conference. During the breaks, Marty beamed with pride about his wife’s remarks. He was right; they were theoretically sound and practically helpful to the members of the international law community present. A distinguished tax lawyer in his own right, Martin Ginsburg never missed an opportunity to showcase RBG.  

The Barretts appear to witness a selflessness that finds joy in the achievements of others. That is not the way of contemporary politics, from either side. Sadly, jealousy generated by success can seep deeply into even home base. A fraction of Notre Dame faculty, including many who are not personally acquainted with the Barretts, have been enjoying their “15 minutes of fame” by circulating a letter encouraging Judge Barrett to spurn her nomination. Ostensibly, the letter writers want to even the political score. But two constitutional wrongs do not make a right.

It was decidedly contrary to the Constitution for President Obama’s nominee, Merrick Garland, not to have been given a full inquiry into his suitability for the court. RBG was right to remind us then of the length of the presidential term.  

But is it hypocritical for Barrett to accept the nomination? No. At some point the constitutional manipulation — including the infusion of political favoritism into the judicial selection and confirmation process — must stop. There is always some claim of treachery to be assuaged.  Before Garland was left cooling his heels, the Senate Judiciary Committee under Joe Biden delayed, and ultimately denied, hearings to a large number of President Bush’s nominees for the federal courts. These were not unworthy candidates; for example, they substantially delayed the appellate appointments of both John Roberts and former Circuit Court of Appeals Judge Michael McConnell.

Barrett’s relatively harmonious hearing — acknowledged by Sen. Dianne Feinstein’s (D-Calif.) collegial, though perhaps COVID-risky, embrace of Chairman Lindsey Graham (R-S.C.) at the conclusion of Barrett’s testimony — now should be followed by an overwhelming, RBG-like approval by the full Senate.

Douglas Kmiec is professor emeritus of constitutional law at Pepperdine University School of Law and founder of the Notre Dame Journal of Law, Ethics and Public Policy. He served as the U.S. ambassador to Malta from 2009 to 2011 and headed the Office of Legal Counsel during the Reagan and George H.W. Bush administrations. Follow him on Twitter @dougkmiec.