Judge Barrett would help decide high-profile cases soon after being confirmed to the Supreme Court; legal experts weigh in

Updated: Sep. 28, 2020 at 8:21 PM CDT
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NEW ORLEANS, La. (WVUE) - If Louisiana native and Indiana federal appeals court Judge Amy Coney Barrett is confirmed to the U.S. Supreme court as quickly as Republicans want she will be in place on the court in time to hear cases that will be consequential to Americans including the future of the Affordable Care Act, any legal challenges to the outcome of this year’s presidential election and ongoing litigation over abortion rights in the U.S.

Dane Ciolino is a veteran attorney and longtime Loyola Law School professor.

“She obviously should not state how she should rule on the constitutionality or the continued viability of Roe versus Wade, for example, the big elephant in the room in all of these confirmation discussions," said Ciolino.

However, he acknowledged that senators questioning Barrett will push for definitive answers on her positions on key issues that will be before the court.

“Even though both Democrats and Republicans will be pressing her for some insight into how she might rule on various cases, she is, nominees have gotten very good in the past several confirmation hearings to decline to answer,” Ciolino said.

In 2017, Barrett penned an article that is critical of Chief Justice John Roberts who is also a conservative over his position on former President Barack Obama’s health reform law.

Ciolino was asked if a justice’s pre-Supreme Court writings serve as a window into how they might rule on the nation’s highest court.

“It certainly does serve as a window or an indication, she in her writings has not looked upon the Affordable Care Act provisions kindly. Justice Roberts, of course, a Republican appointee has sided with the more liberal minority on the issue of Obamacare, so she really could be the swing vote on that, that could make a difference and result in a different outcome less favorable to the Affordable Care Act,” said Ciolino.

Read the article: https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=2330&context=law_faculty_scholarship

Dr. Sally Kenney is Director of Newcomb Institute at Tulane University and a professor of political science at Tulane.

She noted how Republicans blocked Obama’s Supreme Court pick Merrick Garland in March of 2016, eight months before that year’s presidential election but are now moving full speed ahead with President Donald Trump’s nominee for the high court a little more than a month before election day.

“It’s a very important political choice for the president, what I think is completely eroded is the idea that we should find candidates that generate the maximum amount of consensus, right?” said Kenney. “And what’s eroded is this idea of fair play in turn-taking, that the rules apply to both sides like this rule or convention of not filling a seat immediately before a presidential election. If that’s true for President Obama then it’s true for President Trump.”

She said Garland was a moderate jurist.

Barrett, if confirmed, will fill the seat of the late Justice Ruth Bader Ginsburg who died recently of cancer at the age of 87.

Kenney said Barrett would bring a much different philosophy to the court.

“She’s definitely a strong candidate with conservative credentials and she’s certainly qualified but her jurisprudence is profoundly different in how she thinks about not just reproductive freedom but the constitution itself and women’s rights is very, very different from Justice Ginsburg’s,” Kenney said.

Barrett like her mentor the late Justice Antonin Scalia is an “originalist” in terms of how they interpret the words of the U.S. constitution. And liberals fear Barrett will be a solid vote to overturn Roe V. Wade.

“According to Justice Scalia and other textualists, the constitution’s texts say nothing about abortion. The due process clause of the 14th Amendment and the 5th Amendment, those provisions say nothing about a liberty interest in getting an abortion and a liberty interest that can trump the state’s and the federal government’s ability to regulate in the area of abortion,” said Ciolino.

Still, Ciolino said that does not mean originalists are automatically against legal abortion.

“It’s not fair to characterize these conservatives, so-called conservative justices, these originalists, these textualists as being pro or anti-abortion or pro or anti-speech, or take any of the issues of the day, it’s really about a philosophy of constitutional interpretation; when can you read rights into the constitution that don’t appear from the plain language,” added Ciolino.

Louisiana U.S. Sen. John Kennedy, a Republican, sits on the Senate Judiciary Committee which will question Barrett.

“I’m going to do my job. I think she’s a good nominee, but my job is to advise and consent. I’m going to probe her intellect, her temperament, her judicial philosophy, her character,” said Kennedy.

He also said he hopes for civil proceedings, in terms of how Democrats question the jurist.

“I hope they’ll let us have a respectful process. We don’t need another freak show,” said Kennedy.

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