Hearing strong rumors that Trump will make the Supreme Court nomination today or tomorrow. I think it will be from one of these three:
Amy Coney Barrett: My personal favorite. Forty-eight years old. Trump during a prior Supreme Court nomination when her name came up supposedly said he was saving her for Ginsburg. She and her husband have seven kids, two adopted from Haiti. To call her brilliant is an understatement. First in her class at Notre Dame Law, clerk to Justice Antonin Scalia. Three years in private practice, she taught law at Notre Dame until she was nominated by President Trump to the Seventh Circuit in 2017 and confirmed by the Senate. Her confirmation was marked by anti-Catholic comments by Democrat Senators including Kamala Harris. An originalist, I think she would be a female Scalia, with all his wit and brio.
Barbara Lagoa: Perhaps the favorite for political considerations. Fifty-two years old. Mother of three. Daughter of Cuban refugees. She served as one of the pro bono attorneys for Elian Gonzalez. Appointed by Jeb Bush to the Florida Court of Appeals in 2006, she was appointed to the Florida Supreme Court by Ron DeSantis in 2019. Appointed to the Eleventh Circuit by President Trump the same year. Florida Republicans are saying that appointing her would nail down Florida for Trump in November. With Florida in the bag Trump probably wins another term with one of Wisconsin, Michigan, Minnesota or Pennsylvania. Tempting for any politician, but Trump is far from being a conventional politician.
Allison Jones Rushing. Thirty-eight. She was born the same year I graduated from law school. She clerked for both Neil Gorsuch when he was an appellate judge and for Justice Clarence Thomas. In private practice since 2011. She was nominated by President Trump to the Fourth Circuit in 2018 and confirmed in 2019. Mother of a young son, she and her husband have been married only since 2016. Perhaps the most overtly conservative of the front runners.
Amy Coney Barrett sounds good to me.
A while back John Zmirak wrote an article arguing against Barrett for Human Events. He points out he co-authored a scholarly article that said the following:
“[W]e believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death.“
This is wrong both with regard to the teaching of the Church and the Constitution. Anyone who believes what the aforementioned quote says is unfit for the Supreme Court.
https://humanevents.com/2019/09/19/amy-coney-barrett-is-not-a-safe-pick-for-the-supreme-court/?fbclid=IwAR2iungP_qeGlhEZJfdA_W9oDwzUxbsx7QECq_41WFB3CYXnalJLIl6KDo4
Her argument in that article was that such Judges who had moral qualms about the death penalty had a duty to recuse themselves. It is a good deal more complicated than Zmirak makes out. A good response to Zmirak:
https://www.aei.org/op-eds/defending-amy-coney-barrett-against-the-right/
Here is a link to the 22 year old article which she wrote when she was 26 and a law student:
https://scholarship.law.nd.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1523&context=law_faculty_scholarship
Barrett addressed this:
For starters, Barrett provided the “context” for that article:
Notably, Barrett expressly rejected the notion that “that article and its every particular reflects how I think about these questions today with … the benefit of twenty years of experience and also the ability to speak solely in my own voice”:
Even more importantly, Barrett stated that “sitting here today, I cannot think of any cases or category of cases in which I would feel obliged to recuse on grounds of conscience.”
https://www.nationalreview.com/bench-memos/attack-on-judge-amy-coney-barrett-completely-misfires/
I would hate to be held accountable today for everything that I wrote as a 22-25 year old back in law school. Thank God the internet did not exist back then!
Don, the quote explicitly says that Catholic jurists, “if they are faithful to the teaching of the Church” are morally precluded from enforcing the death penalty. That is not merely saying that those who have qualms ought to recuse themselves. She has a malformed understanding of her religious beliefs, which usually translates into bad jurisprudence. There are better picks at Trump’s disposal.
Read my entire response Greg which I elaborated on. I think Barrett is by far the best choice.
Don, if you were up for a federal judgeship, it would only stand to reason that you would be asked if you still held a particular problematic view. And Barrett ought to be asked if she still holds that particular view. If she answers in the negative, that’s another matter.
She already said that Greg when she was asked about the article during her confirmation hearing.
Honestly, I don’t care who it is, so long as they’re an Originalist and they’re confirmed by the 20th of October or thereabouts.
Viva Frei and Robert Barnes discussed SCOTUS picks on their live stream. Barnes opposes Barrett and he explains it in the live stream. One major objection is that she is too establishment. The section covering the picks is:
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https://www.youtube.com/watch?v=WXdvK7Qxyto
I normally respect Barnes but he was way off base in his criticism of Barrett. He completely misinterpreted what the 1998 article said about Catholic judges and he completely ignored her subsequent disavowal of the article.
FWIW I agree with you Donald on all counts.
I would add that the task of judges in our system of government is to enforce the positive laws that have been agreed upon by the American people. It is the job of voters working through their representatives to enact laws that are consistent with God’s natural law, and even in a perfect legal system such positive laws would reflect and be consistent with natural law — but not synonymous or coterminous. And perfect legal systems exist only in hypotheticals.
The real question is whether a Catholic jurist can take an oath to enforce a set of positive laws knowing that it necessarily represents only a very imperfect reflection of God’s natural law. In particular, if a law should be unjust can a Catholic judge nonetheless enforce it, or must he recuse himself, or perhaps even refuse to even take an oath that necessarily contemplates just such a possibility. The answers are not easy because the analysis is not easy, requiring a deeper dive into understanding the concept of “material cooperation with evil” than most people are willing to undertake, especially since the boundaries of that concept are subject to disagreement among even the most orthodox Catholic theologians.
Whether the death penalty in the US presents such a situation is a separate matter, but I agree with Donald that properly understood it does not.
I’ve heard some rumblings that Barrett may be a little obsessed with virtue signaling and once on the bench, would quickly become another Roberts.
Hard to tell as we can see neither the future nor hearts, but I can understand the right being gun shy after so many betrayals. No offense to Don but sometimes I think the biggest problem with the SCOTUS is that it’s full of lawyers. 😉
that Barrett may be a little obsessed with virtue signaling and once on the bench, would quickly become another Roberts.
If she had such a desire it would have shown up during her faculty years at Notre Dame where the faculty leans Left. Instead she founded Faculty for Life, a pro-life faculty groups. Also a career woman with seven kids I think is immune from wanting to impress anyone. I expect animus on the Left against Barrett. The animus from the Right is simply bizarre.
Don —
I’m puzzled by the animus on the right as well, but it must be remembered that both sides are pretty results-oriented when it comes to legal reasoning. The subset of Americans who actually appreciate the importance of judges following the law even when they disagree with it does reside almost exclusively on the right, but it is nonetheless a small house even in that neighborhood.
Make no mistake — if the law demands a result that the left prefers and a conservative judge properly respects that law the usual suspects will scream RINO, traitor, virtue-signaler or whatever.
I suspect that a lot of wariness on the right can be laid on the feet of Justice Roberts. Or more recently Gorsuch’s betrayal on Title VII.
It’s politicking among the various supporters of the various names on the short list. And maybe a whisper campaign among the stalwarts of the “severe” brand of conservatism practiced by the GOPe.
You know, the guys who’d just as soon see abortion stay legal –if only to keep the base working and donating.
Oh, it goes back further than that. A lot further than that.
Souter.
And before him Kennedy.
And before him Earl Warren.
that both sides are pretty results-oriented when it comes to legal reasoning.
True Mike. I think it was Scalia who said that if a Judge wasn’t going home frequently shaking his head in disgust at some decision he hated to make that was required by the law, he wasn’t doing the job right. I think that bad jurisprudence drives out good jurisprudence and the Left has been wedded now to results ordered jurisprudence since very early in the last century. It is hard for non-attorney conservatives to fight against results oriented jurisprudence as the Left wins victory after victory due to the courts.
Sadly true, Don.
I think you have a post worth expanding in thought there, Don.
You make some excellent points in her defense and I feel a bit better now. I think just the right is feeling so exhausted of betrayal nowadays they have real trust issues with judges now.
It probably wouldn’t be so bad if just once in awhile a leftist judge would betray their cause in the name of strict legality or original intent.
Felix Frankurter was an unpleasant surprise to the Left overall.
And that’s why I keep coming back, Don. Always something new to learn. 😉
(that guy’s tenure ended in ’62)
Yep. Twenty-three years on the court. The confirmed New Dealer who became the leader of the court’s conservative faction.
Viva Frei and Robert Barnes have a video about Stickman striking down the Pennsylvania lockdown measures. Barnes expresses his concerns with Barrett on this issue as well as her background. This is the video:
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https://www.youtube.com/watch?v=i6RUypYhsC8
Since I couldn’t find the youtube clip I was hoping for, I guess I’ll settle for this.
Posting the same video twice is like strenuously objecting after the judge has overruled your first objection.