Amy Coney Barrett’s process begins in the Senate
Detailing the saga that is to come for the next Supreme Court Justice nominee.
Whitney Lynn / Contributor
Following the passing of Justice Ruth Bader Ginsberg, a vacant seat was left on the Supreme Court of the United States. The Republican Party is eager to fill that seat, while the Democratic Party is attempting to delay the appointment until after the election. On Sept. 26, President Donald Trump announced his nomination of Judge Amy Coney Barrett to fill the Supreme Court vacancy. There is much controversy surrounding the nomination due to the fact that the presidential election is less than thirty days away.
During his final year of presidency in 2016, President Barack Obama attempted to appoint Judge Merrick Garland to the SCOTUS with 237 days until the election. The appointment was blocked by a Republican-led Senate on the basis that it was an election year. The argument was that the people should decide their president first, then whoever is elected could nominate a new justice. Circumstances have changed since that election. The Senate and the Presidency are now unified under Republican leadership, and Justice Barrett aligns with conservative values. Republican Senators have the votes to move Judge Barrett through the process quickly, and there is little the Democrats can do to stop the process. If Judge Barrett is appointed, the Supreme Court will have a conservative majority of six to three.
USD law professor Lawrence Alexander has taught at USD for 50 years and specializes in the separation of Church and State, constitutional law, constitutional interpretation, and criminal law procedure. He provided clarity on whether this situation is contradictory compared to the situation in 2016 with his abundant knowledge of the American court system.
“One interpretation is that they didn’t want to confirm Obama’s appointee because they wanted to wait for the election,” Alexander said. “The other way of looking at it is that Presidents in presidential election years are able to confirm appointments when the President and the Senate are in the same party.”
Justice Amy Coney Barrett attended Rhodes College as an undergraduate student, earning her Bachelor’s degree in English. Following Rhodes College, she went on to attend Notre Dame Law School. She graduated from law school at the top of her class, having earned various accolades along the way. She began her professional career as a clerk for Judge Laurence Silberman in the U.S. Court of Appeals for the D.C. Circuit. After this clerkship, she went on to clerk for Justice Antonin Scalia. Scalia served as an Associate Justice of the Supreme Court and passed away in 2016. Despite comparisons to the late justice, during her Senate Judiciary Committee hearing on Oct. 13 Barrett insisted that she has distinct philosophies from her mentor.
“I want to be careful to say that if I’m confirmed you would not be getting Justice Scalia, you would be getting Justice Barrett,” Barrett said.
Scalia was an originalist, and Barrett also identifies as an originalist. According to Alexander, an originalist is someone who believes the Constitution maintains its meaning from the time it was written, and that meaning does not change over time. However, Alexander clarifies that an originalist position does not guarantee a specific interpretation.
“Just because someone’s an originalist, you can’t necessarily predict their view on any particular matter,” Alexander said. “But the one thing they have in common is they all claim to be looking for the original meaning.”
Barrett worked for a private law firm in D.C. for a few years before moving onto teaching. She taught law at both George Washington University and the University of Notre Dame. She was appointed to the U.S. Court of Appeals for the Seventh Circuit in 2017. She is currently 48 years old and still presides over the Seventh Circuit.
Two members of the Gender Equity and Sex Positivity collective (GESP) at USD spoke about how they feel this appointment could impact members of our community. Delaney Tax is the radical pleasure advocate who oversees projects involving sexual health, sex positivity, pleasure, and the ways in which USD students are understanding the world of contraception. She is concerned about the civil rights implications of Barrett’s nomination and potential confirmation.
“Overall, I think that USD students are going to feel a major impact in the rights of minority groups and the rights that are involved in direct safety and care in the government,” Tax said. “I think the nomination is definitely going to affect not only the ways in which minority students are able to exist in the world, but the ways in which white supremacy, hate, and violence comes up on our campus on an even larger scale.”
The Affordable Care Act (ACA) is a notable topic of discussion surrounding Judge Barrett’s nomination. The SCOTUS is set to decide the future of the ACA on Nov. 10. Barrett has openly criticized the ACA but has not stated whether she would vote to repeal it. The ACA, also referred to as Obamacare, was implemented during the Obama administration.
The ACA provides coverage for those with pre-existing conditions, so many Americans wouldn’t be eligible for government coverage if the ACA is repealed and testing positive for COVID-19 is considered a pre-existing condition in the future.
Another student, Lexie Rollings, is the founding member of GESP and also the healthy relationships advocate. Rollings believes the upcoming ruling on the ACA will impact USD students.
“If the Supreme Court were to declare the Affordable Care Act unconstitutional, 20 million Americans would lose their health care coverage in the middle of a global pandemic, including twelve million who are on Medicaid,” Rollings said. “That would also greatly affect USD students and their ability to receive medical attention during this crazy time.”
The future of abortion access has been the topic of conversation amongst many pro-life and pro-choice advocates. There is much debate over whether Roe v. Wade will be overturned and how that may affect people around the country.
“If overturned, then abortion rights would be determined by different states,” Rollings said. “California would absolutely still have the access to affordable abortions, but who’s to say students returning back to their home states would still have that accessibility?”
Although a justice may not agree with something personally, Professor Alexander stated that it does not mean that they will move to overturn it.
“Overturning a Supreme Court case is different from objecting to it,” Alexander said. “You can object to it, but still not overturn it.”
Echoing the same concern as some Democratic legislators, Tax does not believe Barret would be able to separate her Catholic faith from her interpretations of the Constitution.
“The separation of church versus state do not exist in our modern politics,” Tax said. “Amy Coney Barrett’s position as a very upfront religious person who cannot separate religious beliefs from her work would definitely affect the ways in which same sex couples are able to get married in this country.”
Rollings provided some insight on how this would specifically affect the USD community.
“If they pull marriage equality, that puts the LGBT community on USD’s campus in heightened danger to be seen as illegitimate, like an illegitimate identity that’s not worthy of human rights and that’s a huge problem, especially on a campus where we had to fight so hard for an LGBTQ commons,” Rollings said.
Last year, a USD student who identifies as gender non-binary had their door vandalized with anti-LGBTQ slurs. Rollings believes hate crimes like this could become more common due to Barrett’s nomination.
“She doesn’t believe that Title IX protections extend to trans Americans, and she’s been quoted as saying it’s a strain of text to reach that interpretation,” Rollings said. “ If she were to be confirmed and her anti-trans rhetoric turns into policy, a lot of students on campus are going to lose protections. Our community already has the history of anti-gay and anti-trans hate crimes. There are protections, but if she were to strip those, I can totally see these hate crimes increasing, because of the delegitimization of these different identities.”
Another potential change on campus that GESP believes USD students should look out for is the status of DACA, or Deferred Action for Childhood Arrivals, which the Trump administration has tried to overturn. The SCOTUS’s most recent ruling on DACA was in June 2020, where they voted to uphold the program. For Tax, however, the potential of a 6-3 conservative majority casts doubts as to whether a similar decision is possible in the future.
“Ruth Bader Ginsburg’s position on that court was directly tied to the fact that DACA still exists in any way, shape, or form right now.” Tax said.
Following the DACA decision, USD’s President James T. Harris III, DEd released a statement in support of this decision. President Harris went on to share USD’s resources to support undocumented students, including counseling, free legal assistance, and need-based institutional aid.
There is little doubt that Barrett will be appointed to the SCOTUS. The Senate Republicans have enough votes to confirm her to the Court. It seems the only thing standing in the way is the COVID-19 outbreak amongst the President and Republican officials. The Senate has proceeded with hearings in person, with the option to participate in hearings virtually. The Senate Judiciary Committee is expected to hold an official vote to approve Barrett as a nominee on Oct. 22, followed by a full Senate vote to confirm her nomination the following week.