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Thursday, April 22, 2021

A tale of two judges

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A hearing is the process by which senators vigorously question nominees for high level offices. The nominees try to explain — and to defend — their personal and professional history. Hearings can be combustible occasions, such as when then Judge Clarence Thomas was nominated for the Supreme Court in 1991.

Thomas was not well known outside of conservative political circles when then-President George H.W. Bush wanted him to replace retiring Justice Thurgood Marshall. The nomination quickly became controversial given that Marshall was a civil rights icon. (Thomas was hostile to laws that combat racial discrimination. He still is.) Thomas was confirmed to the Supreme Court by a vote of 52-48.

Interestingly, there are many similarities between Thomas and current nominee Judge Amy Coney Barrett. Like Thomas, Barrett is set to replace a civil rights legend (Ruth Bader Ginsburg). Diversity is also at issue. Of the 114 people who have served on the court since 1789, 108 have been white men. Thomas is only the second African American; Barrett would be only the fifth woman. Further, both are Catholic. 

Most importantly, Thomas and Barrett share judicial philosophies. Both are “textualists” and “originalists.” Basically, a “textualist” is a judge who seeks to adhere to exactly what the words in the Constitution mean. An “originalist” is a judge who seeks to adhere to what the authors of the Constitution intended at the time. All originalists are textualists, but not all textualists are originalists.

Strangely, Barrett has argued that Thomas strongly supports the judicial principle of stare decisis, even though he is well known for frequently arguing to overrule precedent. (Stare decisis refers to justices’ tendency to defer to prior legal decisions, except under extraordinary circumstances.) This could become a major issue regarding both Roe and the Affordable Care Act.

Further, Barrett was a law clerk for the late Justice Antonin Scalia, whom she considers to be her mentor. Thomas and Scalia frequently voted the same way on cases, though they frequently had different thought processes. During her hearing, Barrett has made a point of saying that she would not be “another Justice Scalia.” Rather, she would be a “Justice Barrett.” We’ll see …

Of course, there are substantial differences between Barrett and Thomas. Most prominently, Barrett is not under fire for her personal conduct, whereas Thomas was accused of sexually harassing his former colleague Anita Hill — and other women. Still, like Thomas, critics believe that Barrett is a hyper-partisan judge who was nominated primarily to carry out an ultra-conservative agenda.

Before becoming president, Donald Trump boasted that he would nominate judges who were in the mold of Scalia. And Republicans have for years “pre-approved” judges based upon how they’re viewed by organizations such as the Federalist Society and the Judicial Crisis Network. Barrett is obviously uncomfortable with being seen as a political pawn, but Trump and the Republican Party have been crystal clear regarding their judicial intentions. (Notably, Barrett’s discomfort didn’t prevent her from accepting the nomination.)

I believe that Barrett is sincere when she argues that she would not let her political or religious beliefs interfere with her obligation to adhere to the law. However, she is not a robot. Like every other person, her beliefs, biases, experiences, personality and myriad other attributes will affect her judicial decisions. I don’t think that she’s intentionally lying; I think that she’s intellectually dishonest.

I am especially concerned about Barrett as regards issues of racial and socioeconomic equality. As has been widely reported, in Smith v. Illinois Department of Transportation, Barrett wrote, “The n-word is an egregious racial epithet. That said, (the plaintiff) can’t win simply by proving that the word was uttered. He must also demonstrate that (his supervisor’s) use of this word altered the conditions of his employment and created a hostile or abusive working environment.” (Notably, her probable future colleague, Justice Brett Kavanaugh, reached the opposite conclusion in a separate case regarding use of that so-called “n-word”.)

I will make two predictions. First, the Senate will appoint Judge Barrett to the Supreme Court. Second, Barrett will vie with Thomas as the “most conservative” member of the court. I believe that, ultimately, most of her decisions will have a negative effect on our most marginalized citizens. In the words of Sen. Amy Klobuchar, who questioned Barrett this week, I’m just following the “tracks” that Barrett has left.

Larry Smith is a community leader. Contact him at larry@leaf-llc.com.

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