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‘Natural Inheritor of Justice Scalia’s Legacy,’ Conservatives Say of Barrett

October 13, 2020/in Courts & Law, Featured, Policy, Politics/by The Daily Signal

The first day of confirmation hearings for federal appeals court Judge Amy Coney Barrett to serve on the Supreme Court showed clearly how conservative women are treated differently than their liberal counterparts, Sen. Marsha Blackburn said Monday.

“You know there is a double standard when it comes to how the left and the media treat conservative women, as opposed to how they treat liberal women,” Blackburn, R-Tenn., a conservative member of the Senate Judiciary Committee, said after the hearing at a virtual press conference sponsored by Heritage Action for America.

“You’ve had 164 American citizens who have stood before that committee to be a Supreme Court justice. That’s throughout our nation’s entire history,” Blackburn said. “Today was only the fifth time that an American citizen has been a female judge.”

“Look at how they are treating her,” she added. “Just as the media treats conservative women differently, they are doing the same thing to Judge Barrett. They want to send a signal, if you are pro-life, pro-family, pro-religion, pro-business, pro-military, they do not think your voice counts, because you are not in agreement with what the left says should be ‘women’s issues.’”

How are socialists deluding a whole generation? Learn more now >>

Blackburn was joined by other members of Congress, along with a number of conservative leaders.

President Donald Trump nominated Barrett, now a judge on the 7th U.S. Circuit Court of Appeals, for the high court on Sept. 26 to fill the vacancy of the late Justice Ruth Bader Ginsburg, who had died eight days earlier.

Blackburn also noted that Barrett, if confirmed, would be the first mother of school-aged children to serve on the high court.

Jessica Anderson, executive director of Heritage Action for America, expressed appreciation for Blackburn’s point.

“For all working moms, this means so much for us today,” Anderson said at the virtual press conference. “She represents so many of us that have children and are also pursuing a career.”

Anderson went on to note her strong “incredible, impeccable record” as a jurist.

“She is an originalist, a constitutionalist, and we are all eager to see her move forward, first with the Senate judiciary and second to the Senate floor,” Anderson said.

Since then, some Democrats and some in the media have attacked Barrett’s Catholic faith.

Penny Nance, CEO of Concerned Women for America, said opponents of Barrett are embracing a risky strategy with what she called their “bigoted ‘handmaid’ claims.”

Some Democrats and liberal commentators likened Barrett’s membership in a Christian organization to women being handmaids similar to the Margaret Atwood novel and Hulu TV series “The Handmaid’s Tale,” a dystopian tale in which women are property of their husbands.

“We believe it is time for a woman of faith, for a working mom to be on the court and represent our perspective,” Nance said. “I’m reminded that Ruth Bader Ginsburg felt very strongly that women were to serve on juries because she thought correctly that for us to be able to judge other women, that our perspective was needed. I will say that as well about the Supreme Court. There has never been a conservative constitutionalist woman on the Supreme Court. We are, as conservative women, an underrepresented group on the court and in government.”

Rep. Mike Johnson, R-La., chairman of the conserative Republican Study Committee in the House, said he had previously suggested Trump nominate Barrett because she is “the natural inheritor of Justice [Antonin] Scalia’s legacy.”

Barrett clerked for Scalia, who was known for his originalism and served on the high court from 1986 until his death in 2016.

“I’ve spoken to the president on multiple occasions over the past couple of years that she should indeed be the nominee for the next vacancy on the court,” Johnson said.

“When I had a few minutes to talk to him about Amy Coney Barrett over the last couple of years, I said, ‘You know, Mr. President, she is the natural inheritor of Justice Scalia’s legacy.’ President Trump had committed to the American people that he would nominate someone like Scalia,” Johnson said. “I said, ‘Mr. President, you can’t find a better person because she clerked for him. She studied the Constitution under him, the great master that we all revere him to be. She’s cut out of the same mold. You know exactly what you will get with this jurist. She will be an originalist. She will adhere to the original intent.’”

COLUMN BY

Fred Lucas

Fred Lucas is chief national affairs correspondent for The Daily Signal and co-host of “The Right Side of History” podcast. Lucas is also the author of “Abuse of Power: Inside The Three-Year Campaign to Impeach Donald Trump.” Send an email to Fred. Twitter: @FredLucasWH.

RELATED ARTICLES:

9 Takeaways From Day 1 of Barrett Confirmation Hearings

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What to Watch for During Amy Coney Barrett’s Senate Confirmation Hearings

4 Women Who Clerked or Studied Under Her Share How They View Amy Coney Barrett

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Replacing RBG with ACB – Delinquent Democrats Deserve No Quarter

October 13, 2020/in Courts & Law, Elections, Must Read, Policy, Politics/by Dr. Martin Sherman

There is a bitter & infuriating irony in the fact that it was the Democrats themselves, who committed the very transgressions they endeavored to attribute to their Republican adversaries.

… it is necessary for a prince, wishing to hold his own, to know how to do wrong…he need not make himself uneasy at incurring a reproach for those vices without which the state can only be saved with difficulty, for if everything is considered carefully, it will be found that something which looks like virtue, if followed, would be his ruin; whilst something else, which looks like vice, yet followed brings him security and prosperity –Nicolo Machiavelli (1469-1527), The Prince, Ch. XV.

Politics is the art of the possible …A statesman…must wait until he hears the steps of God sounding through events; then leap up and grasp the hem of his garment.– Otto von Bismarck (1815–1898).

Prologue

As this is a significantly longer essay than my usual “INTO THE FRAY” column, I have decided to provide a list of the sections headings as a brief “overview” guide for the readers. Accordingly, this rather lengthy—and extensively researched—piece will be composed of the following 200-300 word sections).

1. The pot calling the kettle black	10. The pot calling the kettle black …once again?
2. “Tell Vladimir I will have more flexibility…”	11. Chaotic kaleidoscope of corruption
3. Dubious deals & corrupt contributions?	12. Down the rabbit hole?
4. The dubious & the corrupt (cont.)	13. Rabbit hole? (cont.)
5. “No reasonable prosecutor…” Really??	14. A withering Senate report
6. The need to condemn but not convict	15. Visceral, vicious and vindictive
7. When “extreme carelessness” is not “gross negligence”	16. “…a terrible & profoundly immoral dirty trick”
8. An iniquitous impeachment over invented infractions	17. “Nothing is off the table…”
9. Impeaching the unimpeachable?

As the end of September approached, President Donald Trump nominated Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsberg, who passed away just a week earlier, to the US Supreme Court.

The pot calling the kettle black

The nomination sparked an eruption of apoplectic protest and incandescent rage from Trump’s political rivals in the Democratic party—particularly as near the end of the Obama incumbency, the GOP prevented the confirmation of then-Democratic nominee, Merrick Garland, as a Supreme Court justice.

There is no doubt that several reasoned arguments can be raised against the Trump administration exploiting the opportunity that the passing of Justice Ruth Bader Ginsburg has created, to advance a Trump nomination to replace her on the bench of the US Supreme Court.

They all should—indeed, must—be ignored!

After all, in light of the long, loathsome litany of vile, venomous villainy that has characterized the (mis)conduct of the Democratic Party over last half-decade and more, its members have little moral right to expect any quarter from their GOP adversaries. Indeed, their sustained malice and misdeeds have left an abysmal trail of needlessly ruined lives, tarnished reputations and squandered public resources.

Indeed, there is a bitter—and infuriating—irony in the fact that it was the Democrats themselves who, irrefutably and incontrovertibly committed the very transgressions they endeavored to attribute, with such blatant disingenuity to their political opponents in the Republican Party. (This sense of rage—and outrage—is intensified by the stunning news involving recently declassified documents showing profound complicity of the previous administration and sympathetic senior CIA and FBI officials, to undermine the Trump campaign and subsequent administration.)

“Tell Vladimir I will have more flexibility…”

Take for example, the allegations of collusion with Russia, something Trump and his associates have been accused of, virtually from the time he first announced his candidacy for the 2016 presidential elections. Yet, years previously (March, 2012), while attending the Nuclear Security Summit in Seoul, Democratic President Barack Obama, was overheard inadvertently in conversation with outgoing Russian President Dmitry Medvedev, assuring him of enhanced coordination—read “cooperation”, read “collusion”—on an array of issues in dispute between the two countries.

Thus, Obama pledged “greater flexibility” on these topics—particularly regarding a planned NATO missile defense system in Europe, which had been a sticking point in relations between the two nations for some time, and to which Russia was strongly opposed.

The widely reported conversation, which took place shortly before the reelected Vladimir Putin was to take over the presidency from Medvedev, went as follows:

Obama: “On all these issues, but particularly missile defense, this can be solved, but it’s important for him to give me space.”

Medvedev: “… I understand. I understand your message about space. Space for you …”

Obama: “This is my last election. After my election I have more flexibility.”

Medvedev: “I understand. I will transmit this information to Vladimir [Putin].”

Clearly, it is hard to interpret this exchange as anything but an expression by Obama of his far-reaching willingness to accommodate Russia’s concerns—despite those of NATO allies—once he was no longer answerable to the American voter and constrained by the US electorate.

Unsurprisingly, publication of the Obama-Medvedev exchange sparked sharp criticism from political rivals in the Republican Party, but perhaps the most telling came from former Speaker of the House Newt Gingrich, who mused: “I’m curious: how many other countries has the president promised that he’d have a lot more flexibility the morning he doesn’t have to answer to the American people?”

Dubious deals & corrupt contributions?

Indeed, when it comes to collaboration with the Russians, the conduct of the Democrats is far more substantive, substantial—and questionable—than that of the Trump team.

After all, while Hilary Clinton was Secretary of State (2009-2013), the Clinton Foundation received around 150 million dollars in donations, while Bill Clinton himself received a half-million dollar fee for a Moscow lecture—just prior to the US government confirmation of a sale (December 2010) entailing transfer of control of around 20% of US uranium resources to Uranium One, a subsidiary of a State owned Russian company, Rosatom. (Also see Cash flowed to Clinton-Foundation as Russians pressed for control of uranium company, New York Times, April 23, 2015.)

Although an FBI investigation of the events surrounding this incident, known as the “Uranium One Episode”, did not result in any criminal indictments, numerous troubling questions continue to enshroud the affair.

These questions were aptly catalogued by The Wall Street Journal editorial board member, Holman W. Jenkins Jr., in a 2018 piece, Uranium One Is A Curious Case. He writes: “…it [is] interesting that the FBI, under its then-chief Robert Mueller, appears to have sat on the case—only getting around quietly to announcing a plea deal with the Russian executive five years later, in 2015…The FBI handled the Uranium One matter in a manner that avoided making immediate trouble for the policy and political interests of Barack Obama and Hillary Clinton.”

The dubious & the corrupt (cont.)

He asks acerbically: “What if it had been known that the FBI was sitting on a case involving demonstrable malfeasance (bribery and kickbacks) by the Russian company’s U.S. arm? What if an eyewitness who had helped crack the case told the FBI (as he now claims he did) that Russian uranium executives had spoken openly of currying favor with the Clinton Foundation to advance their U.S. business?”

In the same caustic tone, he continues: “Would it have been embarrassing for the Obama policy if it were known that the uranium assets the Russian government sought to buy had been accumulated by…entrepreneurs working closely with Bill Clinton? That the Clinton Foundation received $145 million in pledged contributions from people associated with these transactions? That Mr. Clinton had been paid $500,000 for a speech in Moscow?”

His unequivocal answer was: “Yes. It would have raised political difficulties for Mr. Obama’s Russia policy. It would have harmed the reputation of his secretary of state, Hillary Clinton.”

Expressing his skepticism as to the efficacy of the FBI investigation, he remarks in reference to Hillary Clinton’s email scandal: “…if the FBI didn’t find a basis to charge her aides with obstruction and evidence tampering, it’s only because it didn’t want to [sic].”

“No reasonable prosecutor…” Really??

Of course, there are solid grounds for Jenkins’s cynicism regarding the performance of the FBI—particularly with regard to the Clinton email scandal.

Indeed, any fair-minded observer of the then-FBI Director, James Comey, in his testimony before House Oversight and Government Reform Committee on this matter, would almost certainly be astonished by the stunning contradiction between the substance of his testimony and his recommendation not to file criminal charges against anyone involved in the affair.

Nowhere was this more evident than when Comey was questioned by then-South Carolina Rep. Trey Gowdy. Gowdy pressed Comey on the definition of intent and how Clinton could possibly evade punishment.

During the exchange, Comey was repeatedly forced to admit that Clinton has lied as to the handling of her emails, which in effect constituted “false exculpatory statements”. By his own admission, Comey conceded that such statements are generally used “Either for the substantive prosecution or for evidence of intent in a criminal prosecution.”

Gauged against these responses of his, Comey’s earlier almost oxymoronic public statement is—to be charitable–profoundly mystifying: “Although there is evidence of potential violations regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.”

The need to condemn but not convict

Accordingly, it is not difficult to understand Gowdy’s exasperation and frustration in his closing statement: “So you have a rogue email system set up before she [Clinton]took the oath of office. Thousands of what we now know to be classified emails, some of which were classified at the time.…And this scheme took place over a long period of time and resulted in the destruction of public records yet you say there is insufficient evidence of intent.”

All this brings us back to Holden Jenkin’s previously cited assessment: “…if the FBI didn’t find a basis to charge her aides with obstruction and evidence tampering, it’s only because it didn’t want to.”

Solid corroboration for this assertion comes from a report by CNN—hardly a bed of Rightwing conspiracy theories. The report, citing a well-placed source, stated that “Comey and his FBI colleagues were ‘playing with the language throughout’ the process”, and believed that they “needed to condemn Clinton’s handling of classified information while asserting they would not bring charges.”

Thus, again contrary to his admission in the exchange with Gowdy, Comey claimed: “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.”

When “extreme carelessness” is not “gross negligence”

Significantly, the CNN report explains why Comey insisted on using the term “extremely careless” while studiously avoiding use of the term “grossly negligent”, which was dropped after appearing in an earlier draft of Comey’s memo on the Clinton email affair.

According to the CNN report: “‘Grossly negligent,’ the language dropped from the draft, is a term that carries with it legal ramifications. ‘Extremely careless,’ the term Comey ended up using, does not [sic].” Indeed, as “The Hill” points out “…federal law states that gross negligence in handling the nation’s intelligence can be punished criminally with prison time…”

All this prompted Gowdy’s stern reproach of Comey: “…my real fear is this…[the] double track justice system that is rightly or wrongly perceived in this country. That if you are a private in the Army and email yourself classified information you will be kicked out. But if you are Hillary Clinton, and you seek a promotion to Commander in Chief, you will not be. So what I hope you can do today is help the average person, the reasonable person you made reference to…[to] understand why she appears to be treated differently than the rest of us would be.”

An iniquitous impeachment over invented infractions

The same unscrupulous and unprincipled ruthlessness was reflected in the Democrats doomed attempt to impeach Trump over invented infractions—the very infractions that that irrefutably were committed by the former Democratic Vice-President and present Democratic candidate for President, Joe Biden. (See here min 02.31.)

Without delving into the depth of the details surrounding the episode, readers will recall that the impeachment initiative was launched on the basis of two purportedly incriminating telephone calls between Trump and Ukrainian President Zelensky.

According to an unidentified whistleblower(s), reportedly employed in the intelligence community, the calls provided evidence that Trump threatened to withhold US aid to Ukraine as leverage to induce the Ukrainian government to provide incriminating material on Joe Biden, a political rival, and on Biden’s son, Hunter—who, shortly after having been discharged from the Navy, after testing positive for cocaine use, was appointed to the board of a large Ukrainian energy company, Burisma—despite having no obvious experience for the job or the lucrative payments it entailed… and a long record of previous drug and drink addiction.

For transcripts of the Trump-Zelensky talks, declassified and released by the White House, see here & here.

Personally, I would be intrigued to learn how any remotely impeachable act could be gleaned from the contents of the transcripts and would be grateful for any persuasive guidance in this regard.

Impeaching the unimpeachable?

Indeed, the Democrats impeachment initiative raises several troubling questions.

For instance, are the Democratic instigators seriously suggesting that the US President should not be concerned as to conditions of governance in a country that is the recipient of US aid? If he should, then surely nothing could be more appropriate than to inquire as to those conditions and seek to investigate whether or not US citizens are, in anyway, playing a detrimental role in them.

Accordingly, then, should Biden snr. and his family members be immune to such investigation just because, at the time, he happened to be a possible candidate in an upcoming presidential race?? For if so, would the request for an investigation be unimpeachable (pardon the pun), if it related to someone who is not a political rival of the President—leaving his rivals free to engage in whatever nefarious activity they may choose?

The pot calling the kettle black…once again?

Of course, the jaw-dropping truth is that Joe Biden himself engaged, by his own admission, in precisely the act for which Trump was impeached: Using foreign aid as a lever for furthering personal interests.

Thus, in December 2015, Joe Biden, then-U.S. Vice President, warned Petro Poroshenko, the Ukrainian President that, if he did not fire Viktor Shokin, then Ukraine’s Prosecutor General, he would block the transfer of a billion dollars of US aid to the country. Biden snr. boasted openly about getting Shokin fired. During a 2018 speech at the Council on Foreign Relations, he proudly proclaimed he withheld $1 billion in loan guarantees for Ukraine in order to force the government to address the problem with its top prosecutor. (Also see here min. 52.30-53.15.)

In Biden snr’s own words: “I said, nah, I’m not going to—or, we’re not going to give you the billion dollars. They said, you have no authority. You’re not the president. The president said…I said, call him. I said, I’m telling you, you’re not getting the billion dollars. I said, you’re not getting the billion. I’m going to be leaving here in, I think it was about six hours. I looked at them and said: I’m leaving in six hours. If the prosecutor is not fired, you’re not getting the money. Well, son of a bitch. He got fired. And they put in place someone who was solid at the time.”

Chaotic kaleidoscope of corruption

Interestingly, the individual that Biden snr. referred to as “solid”, was Yuriy Lutsenko , who several years previously was sentenced to four years in prison for embezzlement and abuse of office (with confiscation of his property).

Of course in the chaotic, kinetic kaleidoscope of corruption that is Ukrainian politics, it is difficult to know when, and if, the state organs of law and order have been exploited to settle political scores—and Lutsenko’s conviction was criticized by many as political persecution. Thus, despite doubts in this regard, it is interesting to note that the liberal/left leaning “New Yorker” commented: “Lutsenko, sometimes referred to simply as “the corrupt prosecutor general” of Ukraine, has been portrayed, hardly without reason, as an unscrupulous politician prone to telling lies to further his personal ambitions.” A similar assessment was expressed by former US Ambassador to Ukraine, Marie Yovanovitch, a central witness in the impeachment process against Trump, in a closed-door deposition, describing Lutsenko as an “opportunist” who “will ally himself, sometimes simultaneously, with whatever political or economic forces he believes will suit his interests best at the time.”

This characterization of Lutsenko appears rather accurate.

Indeed, there is a bitter irony in the fact that it was Lutsenko, who reportedly fed damaging information to Trump’s envoy to Ukraine, Rudy Giuliani—which in itself seems to raise doubt as to judgement of the former vice-president, in view of his earlier characterization of Lutsenko as “solid”.

Down the rabbit hole?

The revelation of Biden snr’s use of US aid to coerce the Ukrainians over conduct of the investigation of corruption in the country, including into a company of whose board Biden jnr. was a member, sent the Democrats scrambling to concoct unlikely unconvincing accounts as to the real motivation behind the then-Vice-President’s strongarm tactics.

According to this version, the purpose of Biden snr’s demand to replace the then-Ukrainian prosecutor was to beef up investigation into corruption including into Burisma—thus exposing Biden jnr. to greater scrutiny, rather than covering for him.

For example, James Risen of “The Intercept” wrote: Joe Biden …was not trying to protect his son — quite the reverse. The then-vice president issued his demands for greater anti-corruption measures by the Ukrainian government despite the possibility that those demands would actually increase – not lessen — the chances that Hunter Biden and Burisma would face legal trouble in Ukraine.

There are good reasons for treating this version with a healthy dose of skepticism.

On the one hand, as Pulitzer laureate Adam Entous reveals in Will Hunter Biden Jeopardize His Father’s Campaign?, members of Biden’s staff found him highly sensitive—even intimidating—with regard to any criticism of his family. A former Biden adviser told Entous, “Everyone who works for him has been screamed at”, and a business associate remarked that having difficult conversations with Biden about his family seemed like “…really touching a very fragile part of him.”

On the other hand, as Entous writes elsewhere: “Hunter, who had long struggled with severe drug and alcohol problems, had almost no expertise in the region or in energy, and many U.S. and Ukrainian officials suspected that Zlochevsky [Burisma’s founder /owner] had put Hunter on the [Burisma]board in the hope of protecting himself from prosecution.”

Rabbit hole? (cont.)

According to Entous: “Some White House and State Department officials disapproved of Hunter’s role at Burisma, concerned about the appearance of a conflict of interest, but they mostly avoided discussing the matter with Joe Biden. The Vice-President had an unwritten “Don’t ask, don’t tell’ policy when it came to his family members’ business decisions. The issue seemed too sensitive to raise…”

Accordingly, given: (a) Joe Biden’s extreme sensitivity regarding any adverse criticism of members of his family and their business dealings; (b) the fact the Burisma and its founder were the focus of ongoing corruption investigations; (c) the concern voiced both in Washington and Kiev over Hunter Biden’s presence on the Burisma board; the record of Hunter Biden’s “problematic past”, to which option would an unbiased adjudicator attribute greater credence:

That which maintains that the purpose of Joe Biden’s strongarm action was to protect his son from greater scrutiny by the Ukrainian authorities; or
That which maintains that the purpose of Joe Biden’s threats of punitive action was to expose his son to greater scrutiny by the Ukrainian investigators?

Clearly, under the specified circumstances, there seems very little reason to believe that the wish to institute greater scrutiny was a more plausible motive than the desire to protect—and every reason to believe the converse.

Accordingly, the latter should be assumed to be the true version of events–i.e. the US foreign aid was used to further personal interest—precisely the purported foundation for the Democrats impeachment initiative against Trump…on the basis of far more tenuous grounds.

A withering Senate report

Indeed, in September 2020, the U.S. Senate Committee on Homeland Security and Governmental Affairs published a withering report into the allegations of corruption against Hunter Biden in Ukraine vis-à-vis his dealings with Burisma.

This official US Senate Report strongly underpins the validity of the notion that Biden snr. would have been very loath to expose Biden jnr. to enhanced scrutiny (See for example “Key Findings pp. 4-6).

A few selected citations from the almost 90-page document will illustrate the point.

In the executive summary (p.3), we read: “On April 16, 2014, Vice President Biden met with his son’s business partner, Devon Archer [recently convicted for securities fraud and conspiracy], at the White House. Five days later, Vice President Biden visited Ukraine, and he soon after was described in the press as the ‘public face of the administration’s handling of Ukraine.’”

The report continues: “The day after his visit, on April 22, Archer joined the board of Burisma. Six days later, on April 28, British officials seized $23 million from the London bank accounts of Burisma’s owner, Mykola Zlochevsky. Fourteen days later, on May 12, Hunter Biden joined the board of Burisma, and over the course of the next several years, Hunter Biden and Devon Archer were paid millions of dollars from a corrupt Ukrainian oligarch for their participation on the board.”

The BBC cites from the reports, noting: “Hunter Biden’s position on Burisma’s board was problematic and did interfere in the efficient execution of policy with respect to Ukraine… Biden relatives ‘cashed in on Joe Biden’s vice presidency’ ..‘Hunter Biden’s position on Burisma’s board cast a shadow over the work of those advancing anticorruption reforms in Ukraine…creating criminal financial, counterintelligence and extortion concerns’”.

The report ends with the following disturbing statement: “The…investigation has faced many obstacles from the [Democratic] minority and from executive agencies that have failed to comply with document requests. Accordingly, there remains much work to be done.”

Visceral, vicious and vindictive

The malevolent malfeasance of the Democrats was on stark display in mid-2018 with the nomination, and later appointment, of Brett Kavanaugh as Supreme Court Justice.

As readers will recall, Democrats endeavored to derail Kavanaugh’s conformation by raising flimsy allegations regarding a purported over-amorous teenage episode, involving one, Christine Blasey Ford, today a psychology professor, which supposedly took place almost 40 years in the past, when both were minors—as if that had any bearing on Kavanaugh’s attitude, aptitude and/or acumen as a full-grown adult…almost four decades later. In their fervor to block Kavanagh’s appointment, the Democrats showed they would baulk at nothing, however underhand and meanspirited, and that they had no compunction in trying to destroy his good name, and professional standing, regardless of the cost on his family.

Significantly, although Blasy Ford claimed to recall the alleged attack itself in some detail, she somehow could not remember any other potentially corroborative details—such as where the incident supposedly took place, how she got there and how she got back home. Moreover, no corroborating witnesses could be located and those named as such by Blasy-Ford, such as Leland Ingham Keyser, did not substantiate her accusations—even claiming to have been pressured by Blasy-Ford sympathizers to falsely implicate Kavanaugh.

“…a terrible & profoundly immoral dirty trick”

It is thus difficult to disagree with David French, who referred to the Democratic initiative as “a terrible and profoundly immoral political dirty trick”.

He writes: “What Dianne Feinstein [the Democratic Senator whom Blasy-Ford initially contacted] has done to Brett Kavanaugh is unconscionable. She sat on a vague, anonymous accusation for months, refused to question Kavanaugh about it, refused to demand further substantiation, and then actually had the audacity to publicly refer it to law enforcement without providing a single shred of evidence that the referral was warranted. This is character assassination on a grand scale.”

It was hardly surprising, therefore, that Senator Chuck Grassley (R., Iowa), who chaired the Judiciary Committee during Kavanaugh’s bitter confirmation process, voiced grave disapproval at the shameful tactics adopted by the Democrats and the motley collection of Kavanaugh accusers that emerged in their wake, several of whom he referred for criminal investigation by the Dept. of Justice. He commented: “When individuals intentionally mislead the committee, they divert important committee resources during time sensitive investigations and materially impede its work. Such acts are not only unfair; they are potentially illegal. It is illegal to make materially false, fictitious, or fraudulent statements to congressional investigators. It is illegal to obstruct committee investigations.”

Grassley also expressed his concern for future judicial confirmation hearings, warning that false allegations simply bog down the committee and squander its resources.

He urged: “The next Supreme Court nominee should not have to defend himself or herself against baseless and fabricated allegations, and committee staff should not have to spend valuable time investigating them”, which brings us back full circle to the issue with which we began this essay—the upcoming confirmation hearing for Justice Ruth Bader Ginsberg’s replacement on the bench of the Supreme court—Amy Cony-Barrett.

“Nothing is off the table…”

The placement of Supreme Court justices is arguably one of the most impactful and indelible actions an incumbent president can perform. It is precisely because of this reason that the Democrats oppose it with such vehement passion.

Thus, even before Trump had nominated Cony Barrett, the Senate Minority Leader, Chuck Schumer (D., NY), warned that if the confirmation procedure goes ahead “nothing is off the table”. He underscored: “Our No. 1 goal must be to communicate the stakes of this Supreme Court fight to the American people,”—which is, of course, exactly why the Republicans must press on regardless.

Indeed, in light of the long—yet far from exhaustive—litany of loathsome conduct of the Democratic Party, showing scant regard for personal lives of political adversaries or respect for national institutions, the Republicans must be relentless in pushing forward with the upcoming confirmation hearing of Amy Cony Barrett.

In this regard, they must unequivocally show that “everything, indeed, is on the table”.

PODCAST: Sen. Marsha Blackburn Previews Barrett’s Supreme Court Confirmation Hearings

October 7, 2020/in Courts & Law, Elections, Policy, Politics, Regulation, Video/by The Daily Signal

Sen. Marsha Blackburn, R-Tenn., a member of the Senate Judiciary Committee, joins the “Daily Signal News” podcast to talk about the committee’s confirmation hearings for Supreme Court nominee Amy Coney Barrett, set to begin next week.

Senate Democrats, who generally have supported virtual hearings during the pandemic, now demand in-person hearings to consider Barrett. How is the Judiciary Committee’s Republican leadership responding? What kind of questions will Barrett face? Blackburn breaks it down.

We also cover these stories:

The White House physician, Sean Conley, announces that President Donald Trump no longer has symptoms of COVID-19.
Trump tweets: “Flu season is coming up! Many people every year, sometimes over 100,000, and despite the Vaccine, die from the Flu.”
The president breaks off negotiations with congressional Democrats over a new coronavirus relief bill.

The “Daily Signal News” podcast is available on Ricochet, Apple Podcasts, Pippa, Google Play, and Stitcher. All of our podcasts may be found at DailySignal.com/podcasts. If you like what you hear, please leave a review. You also may leave us a message at 202-608-6205 or write us at letters@dailysignal.com. Enjoy the show!

How are socialists deluding a whole generation? Learn more now >>

Rachel del Guidice: I am joined today on “The Daily Signal Podcast” by Sen. Marsha Blackburn of Tennessee. Sen. Blackburn, it’s great to have you with us on “The Daily Signal Podcast.”

Sen. Marsha Blackburn: I am thrilled to join you. Thank you so much for the invitation.

Del Guidice: Well, it’s great to have you with us. And you are part of the Senate Judiciary Committee. Next week, the confirmation hearings will be starting for Judge Amy [Coney] Barrett, who is President [Donald] Trump’s Supreme Court nominee. Can you tell us a little bit about how you expect these hearings to go given the whole current situation with coronavirus?

Blackburn: Yes. We are going to follow a model which has been in place for the Senate since COVID hit, and that is called a hybrid model. With this, the hearing is convened in person, but members and witnesses are allowed to attend virtually. All total, the Senate has done about 150 hearings under this model, and the Senate Judiciary Committee itself has done 21 hearings on this model.

So, that’s the model that we are going to use, and we will begin on the 12th. We will wrap up on the 15th. We will vote her out of committee on the 22nd. Then I expect she’ll be on the floor the 26th or 27th.

Del Guidice: Well, Democrats have been supportive of virtual hearings up until now, but now they’re demanding in-person hearings. What is your perspective in response to all this?

Blackburn: They are trying to do anything they can do to delay this confirmation.

What they would like is to have a liberal justice on the court. The reason for that is because they don’t want to have a constitutionalist there who would block them from implementing socialized medicine and taking away the health insurance from 170 million Americans. They don’t want a justice who would block their implementation of the Green New Deal and step on your private property rights.

They want to be able to pack the Supreme Court. They want to be able to abolish the Electoral College and give statehood to D.C. and Puerto Rico. They have a very aggressive first 100-day agenda if they take the White House, the House, and the Senate, and that is what they are planning to move forward on. They know that the Supreme Court could get in their way of achieving their goal of implementing that agenda.

Del Guidice: How is the Senate Judiciary Committee Republican leadership responding to this pressure from Senate Democrats?

Blackburn: We’ve set the schedule, and we’re moving forward on the schedule. We just understand what it is that they are trying to do and why.

Del Guidice: Well, you’re very passionate about the judge’s personal life story. Can you talk to us a little bit about that?

Blackburn: She is a role model, and it should be an encouragement to all women that, indeed, you can be a wife, a mother, a lawyer, a law professor, a judge, and have a wonderful family and home life.

That is what Judge Barrett and her husband have done. They have seven children—two are adopted from Haiti, one has special needs—and they have figured out this work-life balance that so many of us … working moms have been able to figure out.

It is really encouraging to see her. She’d be the first mother with school-age children on the court. So what a great role model for so many women.

I find it also really interesting that what they’re trying to do is use her religion against her—but isn’t this what the left does? They take something that is a strength, and then they try to turn it into a negative. That is what they’re doing with Judge Barrett.

Basically, what they are saying, if you’re a woman of faith, if you’re active in your church, in your religion, if you take your children to church every Sunday, then that should be a disqualifier from serving on the federal bench.

We know that that is not right. It is expressly prohibited from having a religious litmus test in this country for people that want to serve on the judiciary. We know that a lot of the left would like to have only atheists or secularists on the federal bench.

Del Guidice: Sen. Blackburn, I want to get back to the judge’s role as a mom and some of the attacks she’s seen there, but I do want to ask you a little bit more about the attacks we’ve seen on her faith.

We saw them in 2017 with Sen. [Dianne] Feinstein, and I wanted to ask you, do you think it’s appropriate—we talked about this a little bit, but I want to talk about it a little bit more—to attack someone’s faith or religion during a confirmation hearing?

Blackburn: No, I don’t. This came up during her circuit court confirmation hearing. I have to tell you, to refer to your faith as dogma, to ask about orthodoxy in the manner that Sen. [Dick] Durbin did, to attack the Knights of Columbus—which is something we’ve heard come from Sen. [Kamala] Harris—in my opinion, it is just really misplaced and unseemly.

We have religious liberty in this country. We have the right to worship. For them to then begin to attack her and use this as a negative because she is a woman of faith is, I think, very unexpected and is something that’s going to turn a lot of people off.

Del Guidice: Going back to some of the attacks the judge has seen for her … serving as a mother to her children, there is a Boston University professor who had said that Judge Barrett was a racist and a white colonizer for adopting the two black children that she has. I just was wondering, do you have any response or perspective to that statement from this professor?

Blackburn: They feel as if you are pro-life, pro-family, pro-religion, pro-business, pro-military, then your voice does not deserve to be heard. Because of that, we know that they are going to be attacking her and continuing to attack her.

I thought it was so interesting when the reporter came out and said, “Oh, she has seven children. Does she have time to do this job?” Would they ever have said that about a liberal woman? …

So now, they’re going to attack her for those values, for the actions that she has taken, for not staying home and taking care of her children all day long, every day.

Del Guidice: Multiple Democrat senators—including Senate Minority Leader Chuck Schumer, Kirsten Gillibrand, Richard Blumenthal, a few more—have said that they are even refusing to meet with her before these hearings [start]. They said that this past week. What is your perspective on them refusing to even meet with her?

Blackburn: I think it’s so disrespectful to just not even show up because you want to make a point. Now, think about what they’re sending to millions of young girls and how they are completely discounting Judge Barrett.

Del Guidice: What do you suspect, Sen. Blackburn, [are] some of the questions she’ll receive from your colleagues, as well as the colleagues across the aisle?

Blackburn: Yeah, I think there’ll be questions about the issue of abortion, Roe v. Wade. You’re probably going to hear some about presidential overreach and immigration. You’ll hear some about campus free speech.

Then the Judge has done over a hundred opinions, so there are plenty of things for us to work through and filter through to glean questions. I would imagine most of my colleagues are like me, they’re working through that right now.

Del Guidice: How will you respond? Or how do you think it will be appropriate to respond if we see attacks that mirror what happened to now-Justice [Brett] Kavanaugh during his confirmation hearings? Are you expecting anything like that? How do you think that should be responded to if it does in fact happen?

Blackburn: Well, we certainly think that it’s going to happen. They have said as much. They want to delay the hearing so that she doesn’t get through prior to the election. So we’re going into it expecting to hear that.

The response should be, the president is doing his constitutionally-mandated duty by appointing someone. He is following the historical precedents of our nation in making this nomination. He’s not the first one to do it. It has happened 29 times in our nation’s history.

Now, we are going to do our constitutional duty. We’re going to take up the nomination to confirm her. We will vote either to confirm or not to confirm, and then we’ll send it back to the president.

Del Guidice: We’ve talked a little bit about how Judge Barrett is a mom of seven, she’s a professor at Notre Dame, served in the courts, and we’ve talked about the attacks that she has seen [from] people in this country for everything that she has done. I wanted to ask you, what is all she has done in the attacks we’ve seen on her really demonstrated about the president’s confidence in nominating her to the Supreme Court?

Blackburn: The president felt like she was the best individual for the job. She is a constitutionalist, she’s an originalist, and that is the type of justice he wanted to see serve on the Supreme Court. You’re going to hear her talk a little bit about that when she comes up for the hearings.

Del Guidice: Finally, Sen. Blackburn, we’ve talked a little bit about this, but given what we saw with Justice Kavanaugh and some of the attacks we’ve already seen on Judge Barrett, what is your overall perspective on how the media has handled the coverage of Judge Barrett so far?

Blackburn: They have shown their bias and their prejudice against her, and we expect it will continue next week.

Del Guidice: Well, Sen. Blackburn, it’s been great to have you with us on “The Daily Signal Podcast.” We hope to have you back talking about the hearings once they’ve started. Thank you so much for joining us.

Blackburn: Bye-bye.

PODCAST BY

Rachel del Guidice

Rachel del Guidice is a congressional reporter for The Daily Signal. She is a graduate of Franciscan University of Steubenville, Forge Leadership Network, and The Heritage Foundation’s Young Leaders Program. Send an email to Rachel. Twitter: @LRacheldG

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Abortion and the Battle Over the Supreme Court

October 1, 2020/in Commentary, Courts & Law, Culture War, Healthcare, Policy, Politics/by Jerry Newcombe, D. Min.

Now that Supreme Court Associate Justice Ruth Bader Ginsburg (RBG) has passed on to her eternal state, there will be an intense debate over whomever President Trump nominates to replace her.

Why the intensity of the coming debate? The answer is obvious: Abortion.

Why did the left 30 years ago pull out all the stops and vilify through vicious lies that man who became one of the most important Black Americans in history, Clarence Thomas? Answer: Abortion
Why did the left attempt to sully and drag the reputation of Brett Kavanaugh through the mud, accusing him of misogyny? Ironically, the late Justice Ginsburg even commended Justice Kavanaugh for his true reputation of lifting up women any way he could. But why was there an unending circus of past accusations of alleged sexual misconduct against him, none of which had the slightest corroboration? Answer: Abortion.
Why is the left gearing up even now for World War III in the Senate? Why are some of them seemingly losing their minds over the looming battle? For example, CNN host Reza Aslan typifies the left: “If they even TRY to replace RBG we burn the entire f—–g thing down.” Again, the answer is obvious: Abortion.

Abortion, even when not directly mentioned in the Senate judiciary hearings, is the 800-pound gorilla in the room. It is the underlying issue at the heart of the real battle.

On the eve of the Kavanaugh hearings, I interviewed Wendy Wright, president of Christian Freedom International, for D. James Kennedy Ministries television. Little did we know of the extent of the fireworks against the justice’s confirmation that were just around the corner.

I asked Wendy about abortion and such confirmation battles. She told me, “Yes, abortion has become like the symbol, in a sense, of the extreme role of the Supreme Court—a symbol of an atheistic view that God should have no place when it comes to the public square. Abortion has become this symbol of the extreme role of the Supreme Court to rule on our day-to-day lives and to even insert itself in places that the Supreme Court should not be inserting itself.”

Indeed, every human being, even in utero, is made in the image of God. The Greek New Testament uses the word “brephos,” meaning “baby” to describe both babies in the womb and out of the womb.

Since RBG never met an abortion she didn’t like, her replacement will likely change the makeup on the court over the issue of abortion—and other issues. I maintain that if a person cannot get the issue of abortion right, then they can’t get many other things right. And vice versa.

True to his campaign promise, Donald J. Trump has nominated many good pro-life judges and justices to the federal bench, and they are now making a positive difference. He has promised to replace RBG with a female justice before the election (which even RBG said in 2016 is in a president’s constitutional purview).

A frontrunner nominee, of course, is Amy Coney Barrett, a former professor at Notre Dame Law School. The Wall Street Journal (9/21/20) notes: “Judge Barrett has written and spoken favorably of the conservative Justice [Antonin] Scalia, who died in 2016, and his close attention to the texts of statues as written and support for originalism, or interpreting the Constitution according to its original meaning.”

Judge Barrett said, “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”

Abortion is a “right” the Supreme Court created—not from within the pages of the text of the Constitution or its amendments.

You can read the Constitution until you’re blue in the face, and nowhere will you see even remotely the right for an abortion, the right to terminate one’s pregnancy. It’s not there. It had to be imposed onto the Constitution by activist judges.

In this era of “wokeness,” millions of Americans look back, rightfully, with horror at slavery—the evil practice that nearly torpedoed the Constitutional Convention and that tore the country in half during the Civil War. Hundreds of thousands of Americans died “to make men free.”

I believe future generations will look back at us aghast at this horrible practice of abortion, in an age when we have a scientific window into the womb through 3D sonograms and other technology. We are sacrificing tens of millions of babies on the altar of convenience. Those who promote and sanction this barbarity will have to answer to the Almighty one day for this grave injustice. And from Him there is no higher appeal.

In Amy Coney Barrett, Trump Picks an Exacting Scholar for Supreme Court

September 27, 2020/in Courts & Law, Energy, Featured/by The Daily Signal

President Donald Trump on Saturday evening nominated U.S. Circuit Judge Amy Coney Barrett for the vacancy created by the death of Supreme Court Justice Ruth Bader Ginsburg.

Trump appointed Barrett to the U.S. Court of Appeals for the 7th Circuit in October 2017 and, less than a month later, her name was added to those Trump said he would consider for the Supreme Court.

Senate Democrats have vowed to do everything they can to block Barrett’s nomination, but that will be hard given her impressive record, fidelity to the Constitution, and respect for the rule of law.

Now that Trump has nominated Barrett, 48, Americans want to know who she is and what kind of Supreme Court justice she will be.

How are socialists deluding a whole generation? Learn more now >>

Her husband, Jesse M. Barrett, is an attorney and former federal prosecutor. They live in South Bend, Indiana, with their seven children, five biological (the youngest with special needs) and two adopted from Haiti.

Barrett herself was the oldest of seven and grew up in New Orleans, Louisiana. She received a bachelor’s degree, magna cum laude, in English literature from Rhodes College, where she was a member of Phi Beta Kappa.

Barrett attended Notre Dame Law School on a full-tuition scholarship as a Kiley fellow. She graduated summa cum laude from Notre Dame and was first in her 1997 class, receiving the Hoynes Prize. She was executive editor of the Notre Dame Law Review and received awards for the best exam in 10 of her courses.

Barrett, a Roman Catholic, also belongs to People of Praise, a nondenominational, faith-based group that grew out of the Pentecostal revival of the early 20th century. Members provide each other with practical and spiritual advice, and have opened eight Blue Ribbon schools and undertaken missionary work throughout the country.

Barrett clerked for two prominent federal judges, Laurence Silberman on the U.S. Court of Appeals for the D.C. Circuit (1997-98) and Supreme Court Justice Antonin Scalia (1998-99).

Back to Notre Dame

After a brief time in private practice, during which she was on the team representing George W. Bush in Bush v. Gore following the 2000 presidential election, and teaching law at George Washington University and the University of Virginia, Barrett headed in 2002 to her alma mater, Notre Dame Law School, where she would teach for the next 15 years.

Barrett became a full professor in 2010; three graduating classes voted her “Distinguished Professor of the Year.”

Barrett’s extensive scholarship focuses on areas of particular relevance to appellate judges, such as constitutional law, the federal courts, and statutory interpretation. In particular, her work on originalism and judicial precedent earned her a national reputation. This scholarship reflects her understanding of the defined, limited role that judges play in our system of government.

In a 2003 article in the University of Colorado Law Review, Barrett examined the relationship between precedent and due process, arguing that a rigid or inflexible adherence to precedent actually might deprive litigants of a full opportunity to present the merits of their claims. The legal doctrine of stare decisis, or adherence to precedent, Barrett wrote, must be “flexible in fact, not just in theory.”

In a 2010 article in Boston University Law Review, Barrett explored textualism, stating:

The bedrock principle of textualism, and the basis on which it has distinguished itself from other interpretive approaches, is its insistence that federal courts cannot contradict the plain language of a statute, whether in the service of legislative intention or in the exercise of a judicial power to render the law more just. … There is no justification for departing from the plain text of a constitutional statute.

In a 2013 article in Texas Law Review, Barrett examined how the principle that the Supreme Court should follow its own past decisions is a “weak presumption” in cases that interpret the Constitution.

She endorsed the view that “a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she clearly thinks is in conflict with it.”

In the article, she explained that “public response to controversial cases like Roe [v. Wade] reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle rather than desire that precedent remain forever unchanging.”

Joining the 7th Circuit

When Trump nominated her to the 7th Circuit, every Supreme Court clerk from the year when Barrett clerked there wrote a letter to the Senate Judiciary Committee supporting her nomination.

One signatory, Harvard law professor Noah Feldman, a noted liberal scholar, said this about Barrett in 2018 when she was under consideration for the Supreme Court seat that ultimately went to Brett Kavanaugh:

There were just under 40 Supreme Court clerks in October Term 1998, none exactly a slouch. She was one of the two best lawyers of the 40—and arguably the single best. Any Senate Democrat who tries to go toe to toe with Barrett over her legal abilities is going to lose. Badly. She has only eight months’ experience on the court of appeals after a career as a law professor. But she was legally prepared enough to go on the court 20 years ago.

At Barrett’s confirmation hearing for the seat on the 7th Circuit, Senate Democrats subjected her to harsh and inappropriate questions.

Although Article VI, clause 3 of the Constitution provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States,” Sen. Dick Durbin, D-Ill., asked Barrett: “Do you consider yourself an orthodox Catholic?”

And then Sen. Dianne Feinstein, D-Calif., proclaimed: “When you read your speeches, the conclusion one draws is that the dogma lives loudly within you. And that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”

Democrats also focused extensively on an article in Marquette Law Review that Barrett co-authored with Notre Dame law professor John H. Garvey. They examined the “cultural collision” that can occur when a Catholic judge handles a death penalty case and whether her church’s teaching can be at odds with her judicial responsibility.

Barrett and Garvey concluded: “Judges cannot—nor should they try to—align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard.”

The solution to an irreconcilable conflict, they wrote, is “the recusal of judges whose convictions keep them from doing their job.”

Barrett’s critics accused her of believing the opposite of what she wrote in this article, continuing to claim that she “thinks judges should put their religion ahead of the law.” By creating this false impression, these critics could suggest that Barrett would rely on her Catholic faith to decide cases on other divisive issues such as abortion.

In response to this onslaught during her confirmation hearing, Barrett exhibited grace under fire, stating what she would do if she faced a conflict between her religious faith and judicial duty.

“I would recuse,” she testified. “I would never impose my own personal convictions upon the law.”

It is “never appropriate,” she added, “for a judge to impose that judge’s personal convictions, whether they derive from faith or anywhere else, on the law.”

What Her Record Shows

As a judge, Barrett’s record reflects what she actually wrote in that article and what she actually said in her Senate testimony.

In Lee v. Watson, for example, Barrett joined an opinion by Chief Judge Diane Sykes vacating an injunction that blocked the execution of Daniel Lewis Lee, a member of the Aryan People’s Republic, convicted of a 1996 triple murder. The opinion is a straightforward application of the Federal Death Penalty Act and criticized the district court judge’s improper “maneuver” of creating her own theory of the case to reach her result. Barrett joined a similar opinion, also written by Sykes, in Peterson v. Barr.

Barrett’s judicial docket has included some hot-button issues. In Kanter v. Barr, Kanter pled guilty to mail fraud, a felony that, under both federal and state law, resulted in a lifetime ban on firearm possession. Kanter sued, arguing that the categorical ban violated the Second Amendment when applied to nonviolent felons like him. The district court rejected his challenge and, by a 2-1 vote, the 7th Circuit affirmed.

The lone dissenter was Barrett, arguing that “[a]bsent evidence that he either belongs to a dangerous category or bears individual markers of risk, permanently disqualifying Kanter from possessing a gun violates the Second Amendment.”

In Barrett’s view, the Constitution grants the right to keep and bear arms to all, while giving Congress the limited authority to take that right away from some. She rejected the alternative view that, in effect, Congress gets to decide who has the right to keep and bear arms and who does not. This may seem like a fine distinction to some, but it shows that Barrett gives fundamental constitutional rights the importance they deserve.

Barrett has joined, but has not written, opinions in abortion-related cases. Planned Parenthood v. Commissioner was a challenge to Indiana’s law prohibiting abortion for the purpose of sex selection or on the basis of disability and regulating disposal of fetal remains. A three-judge panel of the 7th Circuit affirmed the district court’s decision that the prohibition was unconstitutional.

After the full 7th Circuit declined to rehear the case, Judge Frank Easterbrook wrote a dissenting opinion that was joined by Barrett. Although Indiana had not appealed the decision striking down the abortion ban, Easterbrook noted that Supreme Court precedents such as Roe v. Wade or Planned Parenthood v. Casey did not address whether the right to abortion they established extends to abortion “designed to choose the sex, race, and other attributes of children … We ought not impute to the Justices decisions they have not made about problems they have not faced.”

Regarding the portion of the decision striking down the fetal-disposal regulations, Easterbrook noted that states may protect the welfare of animals, including regulating the disposal of their remains, such that “[t]he panel has held invalid a statute that would be sustained had it concerned the remains of cats or gerbils.” If animal welfare statutes are rational, he wrote, “[i]sn’t that equally true of a statute about fetal remains?”

Planned Parenthood v. Box involved a challenge to an Indiana law requiring minors to notify their parents before obtaining an abortion. A three-judge panel of the 7th Circuit found the statute unconstitutional before it ever had been implemented, and the full 7th Circuit declined to review that decision.

Barrett, with three colleagues, joined a one-paragraph opinion by Judge Michael Kanne, arguing that the full 7th Circuit should have tackled the issue of when federal courts may issue pre-enforcement injunctions against state laws. “Preventing a state statute from taking effect,” he wrote, “is a judicial act of extraordinary gravity in our federal structure.”

In Price v. City of Chicago, pro-life activists challenged a Chicago ordinance that prohibited communication within eight feet of persons in the vicinity of abortion clinics. The district court upheld the ordinance, relying on a Supreme Court decision that the First Amendment permitted a “nearly identical” Colorado law.

Barrett joined a unanimous 7th Circuit panel affirming that decision. The opinion observed that the Supreme Court’s decisions in this area are “hard to reconcile” and are “in tension” with each other. Although the panel stated that the biding precedent “is incompatible with current First Amendment doctrine,” the judges said that they were nonetheless bound by the decision, and that it was up to the Supreme Court to decide whether to overturn that precedent.

Objectively Applying the Law

Barrett’s opinions on the 7th Circuit demonstrate that she is a judge who pays close attention to the factual record in each case and takes seriously the limited role of a federal appellate court (see here, and here).

Her judicial method, for example, emphasizes an objective application of the law, rather than her own subjective feelings about a case. In Mathews v. REV Recreation Group, she wrote that “[w]e sympathize with the Mathews’ plight; they bought a lemon.” But because the plaintiffs had not shown that the manufacturer had failed to honor its warranty, which was the legal issue in the case, the appeals court affirmed the lower court’s judgment for the defendant.

Barrett also wrote the opinion in Doe v. Purdue University, in which a male college student challenged his suspension after he was found guilty of sexual violence. That one-year suspension resulted in his expulsion from the ROTC program and loss of his related scholarship. He sued the university, claiming its procedures resulting in the suspension violated his constitutional rights as well as federal anti-discrimination laws.

In an opinion by Barrett, the 7th Circuit reversed the lower court, which had dismissed the case. Barret’s opinion was not a decision on the merits of the student’s claims, but rather a decision on whether the lawsuit could proceed or should be thrown out before it really began. Barrett concluded: “Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension.”

The university, for example, refused to disclose the evidence on which it based its decision to suspend the student. This alone, Barrett wrote, is “sufficient to render the process fundamentally unfair.”

She noted that the student might have problems later proving his claims later, “and the factfinder may not buy the inferences that he’s selling.”

“But his claim should have made it past the pleading stage,” she concluded, “so we reverse the magistrate judge’s premature dismissal of it.”

In Cook County v. Wolf, the Illinois county and a nonprofit advocacy organization challenged the Trump administration’s rule implementing the “public charge” provision of the Immigration and Nationality Act. That provision allows denial of admission to an immigrant who is “likely at any time to become a public charge.”

In a 2-1 decision, a panel of the 7th Circuit affirmed a lower court order enjoining the administration from implementing the rule. Barrett dissented, arguing that the majority erred when it said that the term “public charge” referred very narrowly to those who were “primarily and permanently dependent on public assistance.”

Barrett looked at how the term was understood when it first appeared in federal statutes in the late 19th century, concluding that both state legislatures and Congress viewed the term more broadly as a lack of self-sufficiency. Barrett also looked at how courts and administrative agencies used the term in the 20th century, concluding that the 1996 amendments to the public charge provision also took a broader view.

As a result, Barrett concluded that the Trump administration’s rule, which is consistent with this view, is reasonable and therefore likely would be upheld on the merits. As such, an injunction was inappropriate. Those challenging the rule, she wrote, really are challenging the policy choice that it represents, and litigation “is not the vehicle for resolving policy disputes.”

Speaking Outside Court

Barrett has continued to address significant issues outside the courtroom that also help others to understand her judicial philosophy.

In a 2018 speech, she stated that, properly understood, originalism does not involve trying to “think your way into the minds of the Framers.” Rather, she said, it is a recognition that “The text of the Constitution controls, so the meaning of the words at the time they were ratified is the same as their meaning today.”

Speaking days before the 2016 election about what impact the next president would have on the Supreme Court, Barrett declared

People should not look to the Supreme Court as a super Legislature. They should look at the Court as an institution that interprets our laws and protects the rule of law, but doesn’t try to impose policy preferences – that’s the job of Congress and the president.

Barrett’s record gives every indication that she would do just that, and would put the law above her personal views.

Again, although Senate Democrats have vowed to do everything in their power to try to block her nomination to the Supreme Court, it will be a hard case for them to make given Barrett’s impressive record, fidelity to the Constitution, and respect for the rule of law.

Amy Coney Barrett no doubt would be an outstanding addition to the Supreme Court.

COMMENTARY BY

John G. Malcolm

John G. Malcolm is the vice president of the Institute for Constitutional Government and director of the Edwin Meese III Center for Legal and Judicial Studies, overseeing The Heritage Foundation’s work to increase understanding of the Constitution and the rule of law. Read his research. Twitter: @malcolm_john.

Thomas Jipping

Thomas Jipping is deputy director of the Edwin Meese III Center for Legal and Judicial Studies and senior legal fellow at The Heritage Foundation. Twitter: @TomJipping.

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A Note for our Readers:

Democratic Socialists say, “America should be more like socialist countries such as Sweden and Denmark.” And millions of young people believe them…

For years, “Democratic Socialists” have been growing a crop of followers that include students and young professionals. America’s future will be in their hands.